Social Security and Reduction of Alimony
June 4, 2014 § 1 Comment
May a chancellor grant a downward modification of alimony based on the ex-wife’s post-divorce receipt of Social Security benefits that are derived from the ex-husband’s earnings record?
That was a key issue in the case of Cockrell v. Cockrell, handed down by the COA on May 25, 2014. In that case, the chancellor had found a material change in circumstances based on the husband’s serious deterioration in health, and reduced his alimony by $557 a month, which was the amount of the ex-wife’s Social Security benefits that she qualified for based on the ex-husband’s earnings record. The COA affirmed. Judge Fair’s opinion, for the majority, based its holding on the case of Spalding v. Spalding, 691 So.2d 435 (Miss. 1997).
In Spalding, the ex-wife had filed an action to enforce the alimony provisions of a foreign divorce judgment, and the trial judge allowed the ex-husband a credit for Social Security benefits received by the ex-wife based on the ex-husband’s earnings record. It’s not exactly the same scenario as that in Cockrell, but it’s close enough to decide the issue.
Here is how the Spalding court addressed the issue, beginning at page 438:
In ruling that the use of Social Security payments may be an alternative source of satisfying alimony obligations, the chancellor relied upon this Court’s earlier decisions of Mooneyham v. Mooneyham, 420 So.2d 1072 (Miss.1982), and Bradley v. Holmes, 561 So.2d 1034 (Miss.1990). In Mooneyham, this Court weighed decisions from a number of other jurisdictions and held that Social Security payments derivative from the child support payor should be credited against child support. The Court cited with approval the Georgia case of Horton v. Horton, 219 Ga. 177, 132 S.E.2d 200 (1963), which stated the basic policy:
Social Security disability payments represent money which an employee has earned during his employment and also that which his employer had paid for his benefit into a common trust fund under the Social Security Act. 42 U.S.C. § 301, et seq. These payments are for the purpose of replacing income lost because of the employee’s inability to work upon becoming disabled. Thus, these payments substitute for income. Since the amount of alimony required to be paid is determined largely by income, we see no reason why, in discharging the obligation to pay the alimony, Social Security disability benefits should not be credited.
Mooneyham, 420 So.2d at 1074. This Court stated that the decisions considered from other jurisdictions “appear to be unanimous in holding the social security payments to the minor … should be credited on the amount of support ordered by the court.” Id. at 1073.
Eight years later, this Court followed the logic and holding of Mooneyham in deciding Bradley. Bradley held that a retired father’s child support commitment would be credited for Social Security payments the minor child was eligible to receive premised upon the father’s income record, even though the child’s mother chose to receive Social Security benefits based on the income history of the child’s retired stepfather. Bradley, 561 So.2d at 1035–36. This Court stated that “[e]quity suggests that child support obligations are to be off-set, not only to the extent of payments actually received under the Social Security Act, but also for payments the child was entitled to receive, based on the parent’s retirement.” Bradley, 561 So.2d at 1036 (citation omitted).
This Court’s holdings in Mooneyham and Bradley aligned Mississippi with the majority of jurisdictions which have examined this issue. See Pontbriand v. Pontbriand, 622 A.2d 482, 484 (R.I.1993), which stated that the “overwhelming majority of states that have considered this issue allow a credit for Social Security benefits paid to dependent children.”
The issue raised here on appeal has not been previously presented to this Court. However, in the cases of Frazier v. Frazier, 455 So.2d 883 (Ala.Civ.App.1984), and Brewer v. Brewer, 613 So.2d 1292 (Ala.Civ.App.1992), Alabama has considered this issue and extended the principle of derivative Social Security benefits satisfying child support obligations to cases involving alimony claims. In Frazier, the Alabama Court of Civil Appeals held that the trial court erred in not allowing Social Security benefits which the wife received and which were derived from her husband’s Social Security account as credit against his alimony arrearage. Frazier, 455 So.2d at 885. In discussing whether or not to extend derivative Social Security benefits *439 to alimony claims, the court in Frazier remarked:
[w]e cannot fathom any valid reason or reasonable logic as to why the rule of law in the Binns [v. Maddox, 57 Ala.App. 230, 327 So.2d 726 (1976)] and Bowden [v. Bowden, 426 So.2d 448 (1983) ] cases, supra, should not apply to periodic alimony as well as to child support. One of the obvious purposes of Social Security benefits is to partially replace income which is lost because of the retirement of an employee because of age or disability. The payments substitute for income.
Frazier, 455 So.2d at 885.
Appellant contends that the instant case can be distinguished from the Mooneyham case because it deals with retirement benefits rather than disability benefits. This Court, in Bradley, applied the Mooneyham rule to a situation dealing with derivative Social Security retirement benefits, evidently finding no reason to distinguish between Social Security benefits premised on retirement as opposed to disability.
Appellant asserts that Congress did not intend to permit Social Security payments to be an alternate source of income for the satisfaction of an alimony obligation. No cases were cited by Appellant to sustain this conclusion. This Court has held that it will not consider an assertion of error for which there is no authority cited. Armstrong v. Armstrong, 618 So.2d 1278, 1282 (Miss.1993); Smith v. Dorsey, 599 So.2d 529, 532 (Miss.1992); R.C. Petroleum, Inc. v. Hernandez, 555 So.2d 1017, 1023 (Miss.1990).
Appellant insists that the decision of the chancellor to credit derivative Social Security benefits against alimony represented a downward modification of the alimony granted to Betty Spalding, asserting that William failed to meet his burden of proof regarding a material change in circumstances. This Court, in Mooneyham, applied derivative Social Security benefits as credit against child support obligations. Mooneyham, 420 So.2d at 1074–75. Here, we indicated that derivative Social Security payments credited against child support obligations are to be considered as substitute income. Mooneyham, 420 So.2d at 1074. The chancellor in the instant case applied that same logic to derivative Social Security benefits with respect to alimony, and treated the credit against alimony as an alternate source of income out of which alimony obligations are permitted be satisfied.
The chancellor arrived at the same conclusion as did the Alabama Court of Civil Appeals in Frazier, supra, i.e., no valid reason exists to treat derivative Social Security benefits differently with respect to alimony or child support. In the instant case, Betty Spalding’s Social Security benefits are derived in large part from William’s work history and income record. The monies paid into the Social Security fund by William and his employers for the duration of the marriage and the time following the divorce generated the source from which Betty Spalding’s benefits are paid.
The chancellor applied the holding in Mooneyham concerning derivative Social Security benefits as credit against child support obligations to analogous circumstances in an alimony claim. Ample evidence in support of his ruling is found in both Mississippi law and the law of our sister state of Alabama. The chancellor applied the correct legal standard, did not abuse his discretion, and did not commit manifest error. Accordingly, this assignment of error is without merit.
If this rule applies in modification and contempts, it should apply as well in original proceedings where an alimony obligation is being calculated. You might be able to come up with formulations based on the Social Security website calculators that a judge might find helpful in crafting an alimony provision.