BETH CROSS TRIPP v. KEVIN D. CROSS
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RENDERED: SEPTEMBER 15, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1999-CA-001492-MR
BETH CROSS TRIPP
APPELLANT
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE WILLIAM T. CAIN, JUDGE
CIVIL ACTION NO. 98-CI-00268
v.
KEVIN D. CROSS
APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: HUDDLESTON, KNOPF and MILLER, Judges.
HUDDLESTON, Judge:
Beth Cross Tripp appeals from a child custody
order calculating the child support obligation of Kevin D. Cross
and setting visitation pick-up arrangements.
The parties were divorced in Hamilton County, Ohio, on
June 18, 1986.
At that time, Kevin was awarded custody of their
two children, Amanda Kristen Cross, born March 10, 1982, and
Brandon Kyle Cross, born November 1, 1984.
moved to Pulaski County, Kentucky.
In 1992 or 1993, Beth
On February 1, 1994, the
parties entered into an agreement whereby Kevin granted temporary
custody of Amanda to Beth. On August 18, 1997, the parties entered
into
a
similar
agreement
with
respect
to
Brandon.
In
both
instances, the agreement was voluntary, and the change of custody
was undertaken in the best interest of the child.
On March 19, 1998, Beth filed a motion in Pulaski Circuit
Court requesting custody of the children.
The petition did not
specify whether sole or joint custody was sought, but, rather,
sought only “permanent” custody.
Beth, Kevin and Beth’s current
husband were deposed, and briefs were filed by both sides.
Kevin
did not oppose the awarding of permanent custody of the children to
Beth.
On January 4, 1999, the court entered an order awarding
Beth permanent custody of the children.
The order also awarded
Beth child support and required that visitation exchanges occur at
Lexington, Kentucky, the midway point between Kevin’s residence in
Norwood, Ohio, and Beth’s residence in Somerset, Kentucky.
Beth
filed a motion to alter, amend or vacate, and on February 16, 1999,
the
court,
noting
that
there
were
errors
in
its
original
calculation, entered an order requiring the parties to file revised
child support calculations pursuant to instructions as set forth in
the order.
On April 13, 1999, the court entered an order accepting
Kevin’s calculation of child support, which included a credit in
his favor for Social Security benefits paid to Beth on behalf of
the children due to her disabled condition.
This appeal followed.
First, Beth contends that the court erred by giving Kevin
a credit on his child support obligation for Social Security
payments received by Beth on behalf of the children.
from agoraphobia.
According to Beth,
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Beth suffers
agoraphobia is an incapacitating fear of open spaces.
Agoraphobia is a disorder characterized by avoidance of
crowds, and open agoraphobia is a disorder characterized
by avoidance of crowds, and open and public places,
particularly if escape or assistance is not immediately
available.
It may occur alone, or may accompany other
types of panic disorder.
This phobia causes people to
restrict their activities to a smaller and smaller area,
finally leading to the inability to leave home without
suffering a panic attack.
As a result of her disability, Beth receives Social Security
payments
of
$732.00
for
herself,
and
$198.00
for
each
child
($396.00 total for the children).
The April 13, 1999, order set Kevin’s child support
obligation at $412.00 per month. The calculation was based upon an
adjusted monthly income of $547.00 for Beth,1 and an adjusted
monthly income of $3,342.00 for Kevin.
Based upon the total
combined monthly parental income of $3,889.40, the child support
guideline schedules produced a base child support obligation of
$808.00.2
Kevin’s income represented 86% of the percentage of
combined parental income, and, under normal circumstances, the
worksheet would produce a child support obligation of $646.40;3
1
$732.00 in monthly Social Security disability income, less
$185.00 for child health insurance; the $396.00 Social Security
payment Beth receives on behalf of the children was not included in
Beth’s income.
2
See Ky. Rev. Stat. (KRS) 403.212.
3
$808.00 X 86%.
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however, at this stage of the calculation, the trial court deviated
from the normal process.
To arrive at Kevin’s final child support
obligation, the trial court deducted the children’s Social Security
benefit of $396.00 from the base support obligation of $808.00.
This produced a monthly child support obligation of $412.00.4
“Kentucky
follows
the
prevailing
view
of
most
jurisdictions in the United States in that government benefits in
the form of social security for child support may be credited
against the parent's liability under the decree or agreement of
settlement.”5
trial
court
obligation.”6
“Social Security payments may be considered by the
in
determining
whether
to
modify
a
support
While this was not a modification case, but was,
rather, a case setting the initial child support obligation, it
stands to reason that, in the appropriate case, Social Security
payments may likewise be considered in the setting of initial child
support.
In light of the cases cited above, Beth concedes that
Social Security payments may be considered by a trial court in
calculating a noncustodial parent’s child support obligation.
She
argues,
are
however,
that
Hamilton,
Board
and
Miller
distinguishable because, in each of those cases, it was the Social
Security benefit entitlement emenating from the noncustodial parent
which
generated
the
benefit
payment
and
not,
as
here,
an
4
The normal step of splitting the combined parental income
into percentages was ignored.
5
Board v. Board, Ky., 690 S.W.2d 380, 381 (1985).
6
Hamilton v. Hamilton, Ky. App., 598 S.W.2d 767, 768 (1980);
See also Miller v. Miller, Ky. App., 929 S.W.2d 202 (1996).
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entitlement emenating from the custodial parent.
We agree with
Beth.
In Hamilton, the parties had a separation agreement that
provided that the mother would receive child support of $141.00 per
month.
The father died and the child then became entitled to a
Social Security benefit of $341.00 per month.
The father’s estate
moved to terminate the child support obligation, and Hamilton
approved the termination of the support in light of the Social
Security benefit.
In Board, the facts were substantially similar
to the Hamilton case, except that in Board, the child support
obligation was not exceeded by the Social Security benefit, so
rather than a termination of the benefit, there was merely a credit
against the obligation.
In Miller, the father, the noncustodian,
did not die, but rather became disabled.
As a result of his
disability, his child became entitled to a Social Security benefit.
Miller held that the father was entitled to have his child support
obligation credited by the amount of the Social Security payment
paid directly to the child.
“The prevailing view of most jurisdictions in the United
States is that government benefits for children for support may be
credited
against
the
parent's
liability
under
the
decree.”7
However, while “Social Security payments may be considered by the
trial court . . . [the child support] obligation is not necessarily
satisfied in every case as to the amount of benefits received.
7
Hamilton , supra, n. 6, at 768 (citing Bruce I. McDaniel,
Annotations, Right to Credit on Child Support Payments for Social
Security or other Government Dependency Payments Made for Benefit
of Child, 77 A.L.R.3d 1315 (1977)).
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Each situation must be considered in light of the individual
circumstances.”8
In light of the individual circumstances of this case, we
are not persuaded that Kevin is entitled to a credit for the Social
Security benefits paid to the parties’ children because the Social
Security benefit is paid because of Beth’s disability.
Kevin did
not have anything to do with the creation of the children’s
entitlement to their $396.00 Social Security benefit.
“Social
Security disability payments represent money which an employee has
earned during his employment and also that which his employer has
paid for his benefit into a common trust fund under the Social
Security Act.
purpose
of
42 U.S.C. § 301 et seq.
replacing
income
lost
These payments are for the
because
inability to work upon becoming disabled.
of
the
employee's
Thus, these payments
substitute as income.”9
The $396.00 in Social Security benefits paid to the
children are as a result of Beth’s labor, earnings and disability.
The payments on behalf of the children are intended to substitute
for her income.
Kevin is a stranger to the Social Security
benefit, and, we conclude, is not entitled to a credit in the
calculation of his child support obligation.
We reverse the trial court’s child support award and
remand for a calculation of child support which excludes a credit
for Kevin. On remand, the calculation should be made in accordance
8
Id.
9
Miller, supra, n. 6, at 204 (quoting Horton v. Horton, 219
Ga. 177, 132 S.E.2D 200, 201 (1963))
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with the child support guidelines.10
In so doing, the $396.00
Social Security payment for the children shall be included in
Beth’s monthly gross income.11
Next,
Beth
contends
that
the
trial
court
erred
in
requiring that the visitation exchange be in Lexington, Kentucky
because, due to her agoraphobia, she is unable to drive the
children to Lexington.
Establishing responsibility for the transportation of
the children for visitation is a matter committed to the trial
court’s discretion.12
The record discloses that the children’s
stepfather, John Tripp, has on numerous occasions transported the
children
during
visitation
exchanges
and
that
the
maternal grandparents reside in the Somerset area.
children’s
We are not
persuaded that the trial court abused its discretion in requiring
Beth to assume a share of the responsibility for transporting the
children to visitation exchanges.
For the foregoing reasons, the order is affirmed in part
and reversed in part and this case is remanded to Pulaski Circuit
Court for a recalculation of child support obligation consistent
with this opinion.
ALL CONCUR.
10
See KRS 403.212.
11
See Miller, supra, n. 6.
12
Klopp v. Klopp, Ky. App., 763 S.W.2d 665 (1988).
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Bruce W. Singleton
Somerset, Kentucky
Benny E. Ham
Somerset, Kentucky
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