                                                 RENDERED: AUGUST 20, 2015
                                                         TO BE PUBLISHED

               oi5nprrtur       Court of 1firttfurkv
                              2014-SC-000329-DGE
                              2014-SC-000495-DGE


C. D. G.                                         APPELLANT/CROSS-APPELLEE


                  ON REVIEW FROM COURT OF APPEALS
V.                   CASE NO. 2013-CA-001110-ME
            JEFFERSON CIRCUIT FAMILY COURT NO. 07-J-500757


N. J. S.                                         APPELLEE / CROSS-APPELLANT


                 OPINION OF THE COURT BY JUSTICE NOBLE

                         REVERSING AND REINSTATING

      The main issue in this case is whether a parent may be given a dollar-

for-dollar credit for Social Security retirement dependent benefits against a

child-support obligation in light of KRS 403.211(15), which expressly allows

such a credit for disability payments but says nothing about retirement

benefits. The secondary issue, if such credits are proper, is whether the trial

court can apply the credit retrospectively when a lump-sum payment for past

benefits is paid for the child. The Court of Appeals concluded that such credits

are improper. This Court concludes otherwise and reverses and reinstates the

order of the circuit court.
                                     I. Background

       This case has a rather complicated back-story. Much of it is not germane

to the issues in the case, however, and we recount only those facts necessary

to resolve the issues.

       The child in question was born in 2002 when NJS ("the mother"), 1 was

married to JS ("John"). (The mother had four other children, all presumably

fathered by her husband, and later had yet a sixth child; the support of those

other children is not at issue in this case.) As would later be proved, however,

the child was actually fathered by CDG ("Chris"), with whom the mother had

been having an affair and for whom she worked. Nevertheless, John was listed

as the child's father on the birth certificate, and he believed himself to be the

child's father.

       In 2006, the mother filed for divorce from John. The question of paternity

of the child was raised for the first time in the divorce action. John resisted

attempts to have paternity established as belonging to anyone other than

himself.

       Nonetheless, the mother initiated a paternity action against Chris in

March 2007. Less than a month later, the mother and John entered into a

marital settlement resolving child support and custody issues with respect to

all the children. Under that agreement, John was to have the child no less than



       1  Initials are used in the caption of this opinion to identify the people in this
action because that is how they are identified in the filings before this Court (they were
named in the documents in the circuit court). We do not ordinarily protect the identity
of parties to divorce and paternity actions, usually limiting that practice to cases
where children are parties or the victims. In this case, however, we will follow the
parties' leads, but will substitute pseudonyms instead of initials for readability.
                                            2
half the time; John is alleged by Chris to be the child's primary caregiver at

present.

      The settlement agreement also "permit[ed]" (according to Chris's brief)

John to apply for Social Security disability benefits, which he has been

receiving since 2008. Those benefits included a sum for all six children,

including approximately $175 per month for the child in this case, paid to him

as the representative payee.

      After the marital settlement, Chris unsuccessfully sought to have the

paternity action dismissed. In October 2007, he was found to be the child's

father. In January 2008, the mother moved to have Chris ordered to pay child

support. They eventually entered an agreed order under which he would pay

$775 per month in support and owe no arrearage, and the mother would be

responsible for the child's health insurance. Apparently, the parties' incomes 2

                                                                                   puthembyond ftsuprgideln.Thmotcad

she agreed to a lower support amount in anticipation that she would receive

Social Security dependent benefits for the child when Chris retired in a few

years, but no other evidence supports this claim. Chris paid his support

obligation regularly until March 2013.

      In November 2011, Chris turned 67 and applied for Social Security

retirement benefits. At that time, he advised the Social Security Administration

that the child in this case was his child. He was advised that the child would

be eligible for dependent benefits, but that the custodial parent would have to

complete an application for the child. Chris claims that he advised the mother

      2   Both are practicing attorneys with substantial incomes.
                                            3
of this on that day and that he had agreed to meet her at the Social Security

office to complete the process. Chris also claims the mother fought going

through with the Social Security application process until compelled by the

trial court. The mother claims that she did not know the child was eligible for

these benefits until 2012, when she received a notice from the Social Security

Administration stating that Chris was receiving benefits.

      In an effort to move the matter forward, Chris filed a motion in March

2012 to have his support obligation offset by the amount of the Social Security

dependent benefits due to the child, which were later determined to total $1256

per month, and recoupment of any overpayment of support paid since he

began receiving Social Security benefits in May 2011 and the child became

eligible for dependent benefits. Much wrangling between the parties ensued.

      Chris alleges that much of the delay in getting benefits for the child was

due to the fact that the child was already receiving benefits under John's

disability benefits. (Chris alleges that the mother was intentionally committing

fraud with respect to the two sets of Social Security benefits.) The mother

agrees to some extent about the source of the delay, claiming that it was the

result of her ex-husband, John, having obtained benefits for the child without

her knowledge and his having to appear at the Social Security office to

straighten things out, but also claiming that none of the delay is attributable to

her. (She, of course, denies any fraud.)

      Eventually, in March 2013, the child was awarded Chris's benefits,

including a $23,780 lump-sum award of back benefits for the period of May

2011 to March 2013. The lump sum was sent to the mother. Shortly thereafter,
                                           4
Chris asked that the amount and any future support payments be paid into

escrow until his motion for an offset could be decided. According to the

representations of her lawyer to the trial court, the mother had not received the

award at that point, as it had been mistakenly sent to John. The court took the

matter under submission. A few days later, the mother alleged that she had

since received and immediately spent the full lump sum, and thus it was not

available to be paid into escrow, despite having notice that a motion was

pending before the court to escrow the funds.

      Eventually, the trial court ordered that Chris get "a dollar for dollar credit

against his monthly child support obligation for any monies the child receives

as a result of his Social Security retirement benefits," meaning he would owe

nothing, as the benefit to the child exceeded his support obligation. To reach

this result, the court concluded that this was the "equitable outcome" and saw

no reason that the SSA retirement benefits should be treated any differently

than disability benefits are treated under KRS 403.211(15). 3

      The court also ordered the mother to repay the "overpayment" for the 22

months between the beginning of the child's eligibility for benefits and the

court's order (a total of $17,050), noting that she "has the funds available for

      3   That provision states:
              A payment of money received by a child as a result of a parental
      disability shall be credited against the child support obligation of the
      parent. A payment shall not be counted as income to either parent when
      calculating a child support obligation. An amount received in excess of
      the child support obligation shall be credited against a child support
      arrearage owed by the parent that accrued subsequent to the date of the
      parental disability, but shall not be applied to an arrearage that accrued
      prior to the date of disability. The date of disability shall be as
      determined by the paying agency.
      KRS 403.211(15).
                                           5
repayment as a result of the lump sum payment from Social Security for

retroactive benefits," and that "it would be unfair and unjust to [Chris] for this

Court to deny him the ability to recoup his overpayment from those funds."

      The Court of Appeals reversed, holding that Chris was not entitled to a

credit under KRS 403.211(15), reviewing the matter de novo. Because Chris

was not entitled to a credit, he was also not entitled to recoup any previous

support payments.

      We granted discretionary review to answer the question whether a trial

court may order such a credit and, if so, whether recoupment is appropriate.

                                    II. Analysis

      This case essentially presents two broad questions. First, may a trial

court give a credit against a child-support obligation for Social Security

retirement benefits paid to a dependent child? Second, if a court may award

such a credit, may it also apply the credit retroactively and order recoupment

of already paid support upon a lump-sum award of back dependent benefits?

   A. A trial court may award a credit for Social Security retirement
      benefits against a child-support obligation.

      1. Standard of Review

      Before turning to the merits of the parties' contentions, we must first

address the appropriate standard of review.

      Chris claims that the Court of Appeals should have applied an abuse-of-

discretion standard to the trial court's decision to give the dollar-for-dollar

credit. He notes that the trial court did not rely on KRS 403.211 in awarding

the credit but instead decided that equity demanded treating retirement

                                          6
benefits the same way that disability benefits are treated under that statute. He

also notes that support decisions are otherwise reviewed for abuse of

discretion.-

      The mother claims the proper standard is de novo, and thus the Court of

Appeals did not err. She argues that by comparing retirement and disability

benefits, the trial court was necessarily applying KRS 403.211(15), which

applies only to disability benefits and says nothing about retirement benefits,

and therefore does not apply at all.

      As the courts of this Commonwealth have repeatedly stated, trial courts

have broad discretion in determining child-support matters. See Artrip v. Noe,

311 S.W.3d 229, 232 (Ky. 2010) ("The trial court is vested with broad discretion

in the establishment, enforcement, and modification of child support."); Van

Meter v. Smith, 14 S.W.3d 569, 574 (Ky. App. 2000) ("[T]his state's domestic

relations law is founded upon general statutory guidelines and presumptions

within which the trial court has considerable discretion. The trial court has

discretion in many instances, moreover, to deviate from the statutory

parameters, but only if it makes findings clearly justifying the deviation.").

"[T]hat discretion extends, pursuant to KRS 403.211(2)-(4), to deviations from

guidelines-determined child support amounts." Commonwealth, Cabinet for

Health and Family Services v. Ivy, 353 S.W.3d 324, 329 (Ky. 2011).

Nevertheless, the mother argues, the trial court's discretion does not extend to

granting Chris a credit for the dependent benefits paid for the child.

      Thus, the appropriate standard of review is two-fold as there are actually

two separate questions respecting the credit. As to the more fundamental
                                         7
question of whether a trial court's discretion extends, at all, to granting a credit

for retirement benefits paid to a dependent child, the standard is de novo

because that is a purely legal question. But if the trial court has such

discretion, the appropriate standard in reviewing the trial court's decision

granting the credit is abuse of discretion.

      2. May a trial court grant a credit for Social Security retirement
         benefits?

      The mother, as noted above, basically argues that the trial court has no

power at all to grant a credit. Her argument is premised largely on the fact that

KRS 403.211(15) only mentions a credit for disability benefits, not retirement

benefits, and thus the trial court necessarily erred in acting under this statute.

She argues that this Court cannot add words to KRS 403.211(15) giving trial

courts the discretion to award credits, and that this Court is bound by the

pronouncements of the General Assembly.

      This argument has a mistaken premise. It assumes the trial court acted

under KRS 403.211(15). The trial court did not act under this statute, and

instead acted under its general power to determine child-support obligations.

Indeed, the court expressly stated that treating the retirement benefits in this

way was the "equitable outcome," and that it was simply treating retirement

benefits "in the same manner" as disability benefits. Thus, it is evident that the

trial court acted under its broader statutory mandate, not the specific guidance

of KRS 403.211(15), and was exercising the discretion inherent in that general

statutory grant of authority to determine child-support questions.




                                          8
      Though she does not expressly make the argument, the mother's claim is

better understood as one based on the canon of statutory interpretation known

as expressio unius (short for expressio unius est exclusio alterius or "the

expression of one thing is the exclusion of another"). Though not named as

such, this is the rule applied by the Supreme Judicial Court of Maine in Wong

v. Hawk, 55 A.3d 425 (Me. 2012), on which the Court of Appeals relied heavily

in this case. Expressio unius is the "familiar and general rule ... that the

mention of one thing implies the exclusion of another." Fox v. Grayson, 317

S.W.3d 1, 8 (Ky. 2010) (quoting Jefferson County v. Gray, 198 Ky. 600, 249

S.W. 771, 772 (1923)). If this rule controls this case, then the legislature's

choice to mention disability benefits, but not retirement benefits, would imply

an intention to exclude retirement benefits and set a limit on a trial court's

discretion in this area.

      But this "doctrine properly applies only when the unius (or technically,

unum, the thing specified) can reasonably be thought to be an expression of all

that shares in the grant or prohibition involved." Antonin Scalia 86 Bryan A.

Garner, Reading Law: The Interpretation of Legal Texts 107 (2012). The credit

provision in KRS 403.211(15) is not an expression of all that a trial court may

or must do in deciding the amount of child support owed or the source of

payments. The authority and responsibilities of a court in deciding child-

support questions are described across several provisions, KRS 403.211, .212.

and .213, each of which contains several subparts. And, as already noted, that

authority is broad, limited only by the requirements that the discretion be

exercised reasonably and in conformity with any applicable statutory limits.
                                         9
      This understanding is buttressed by the fact that the power of trial

courts to give credits for disability benefits did not originate in a statute

expressly giving such power, whereas the power appears to have been wholly

statutory in Maine. Instead, the discretion to give such a credit first appeared

in case law, which in turn was based on the General Assembly's statutory

grant of general discretion in deciding support matters. A statute expressly

allowing a court to give a credit for disability benefits was not enacted until

2000, see 2000 Ky. Acts ch. 430, § 18 (adopting what is now KRS 403.211(15)),

yet some version of the credit notion has been present in the law of this state

since at least 1980. See Hamilton v. Hamilton, 598 S.W.2d 767, 769 (Ky. App.

1980) (allowing consideration of Social Security death benefits in decision to

modify support). This Court expressly acknowledged the premise in 1985,

stating that "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." Board v. Board, 690 S.W.2d 380, 381 (Ky. 1985).

      Credits for disability benefits were specifically addressed in Miller v.

Miller, 929 S.W.2d 202, 205 (Ky. App. 1996), which predated the statutory

authorization by four years. In Miller, the court reasoned that because

disability benefits are a substitute for income, and that payment of such

benefits to the child directly (or, in reality, the mother or other custodian as the

representative payee) accomplished the purpose of a child-support order,

namely, making money available for the benefit of the child, they could be

credited against a support obligation.
                                          10
      When the General Assembly enacted KRS 413.211(15), it simply codified

what had already been the law of Kentucky. If anything, the legislature's

decision to codify the disability credit reflects a policy decision that the credit is

mandatory, because the statute uses the word "shall," and therefore is no

longer subject to a trial court's discretion. This was a narrow limit on a trial

court's power when addressing retirement benefits (removing the option of not

granting a credit), not a bar on giving a credit in other situations.

      It is understandable that the General Assembly did not specifically

address retirement dependent benefits. The reality, at least in the past, is that

a person entitled to receive Social Security retirement benefits is far less likely

to have dependent children than a person receiving disability benefits.

Obviously, it is not impossible, as illustrated by this case. And it is becoming

far more common for children to be born to older parents, who may divorce or

may never be married at all and thus face support issues. But the General

Assembly's failure to address this does not control our interpretation of the

child-support processes.

      The mother nevertheless argues that there is a distinction between

disability benefits and retirement benefits, and that even under the rationale of

Miller and similar cases, a credit for the latter is improper. She notes that the

disability-benefit and death-benefit cases note that those benefits "are not

gratuitous but are paid as a substitute for lost earning power and are similar in

nature to insurance benefits." Board, 690 S.W.2d at 382. She notes that

Chris's retirement benefits are not a substitute for any lost income; she also



                                          11
notes that he continues to earn substantial income and is fully capable of

supporting the child.

      Still, we see no significant distinction between disability and retirement

benefits, at least in this context. Certainly, disability benefits are a substitute

for lost income, but the important thing is that they are a type of income, albeit

indirect income paid to the child. Retirement benefits are also a type of income.

And they are not gratuitous; they are instead a type of delayed income based

on a history of paying into the Social Security system over a life's work. (In a

sense, they are for "lost" income, in that the money that was paid (as required

by law) into the Social Security system was not available for use by the person

at the time or as an investment.)

      Retirement benefits are, in essence, income from a government-required

investment, the benefits of which are realized only after a certain age. And

dependent benefits are like the income of an investment trust or an annuity

whose benefits are paid to a third party (here, the child). Van Meter, 14 S.W.3d

at 573. The benefits, regardless of whether they stem from disability or

retirement, are an "indirect transfer of income from [Chris] to [the child] for

which [Chris] would be entitled to credit." Id. Thus, the principle is the same for

both retirement and disability benefits. Both are sufficiently analogous to

other third-party payments to the child, such as "an insurance policy or a

private trust" to allow them to be treated as coming indirectly from the parent.

Id. "There is no difference in the amount of payment for child support. The only

change is the source of those payments." Board, 690 S.W.2d at 382.



                                         12
      In a sense, the benefits paid for the child are like independent financial

resources. Though they are paid to the mother, because the child is a minor,

they do not belong to the mother, nor are they for her benefit. At the same

time, Chris never has access to the funds, as they are paid directly to the

mother, bypassing him entirely. Cf. Barker v. Hill, 949 S.W.2d 896, 897 (Ky.

App.1997) (treating SSI benefits due to the child, which are not for parent's lost

income, as an independent financial resource). The independent financial

resources of a child are a proper consideration in deciding child-support

questions, KRS 403.211(3)(d), as is " [a]ny similar factor of an extraordinary

nature specifically identified by the court which would make application of the

guidelines inappropriate," KRS 403.211(3)(g), which would further support the

trial court's authority to take the benefits into account. Of course, the court did

not proceed under these provisions to modify the amount, and instead

employed a credit. Nonetheless, this further evinces the trial court's general

discretionary authority over support matters to reach a fair and just result.

      Thus, this Court concludes that trial courts have the discretion to award

a credit for Social Security retirement benefits paid to the dependent child. This

authority does not stem from KRS 403.211(15) but from a trial court's general

authority and discretion to determine child-support questions. The simple fact

is that nothing in our statutory scheme prohibits such a credit.

      3. The trial court did not abuse its discretion in awarding the credit
         to Chris.

      Having determined that the trial court had the discretion to award the

credit, this Court must now determine whether that discretion was abused in

                                        13
this case. "The test for abuse of discretion is whether the trial judge's decision

was arbitrary, unreasonable, unfair, or unsupported by sound legal principles."

Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

       This Court cannot say that the trial court abused its discretion under

this standard. Although "[t]his discretion is far from unlimited[,] ... generally,

as long as the trial court gives due consideration to the parties' financial

circumstances and the child's needs, and either conforms to the statutory

prescriptions or adequately justifies deviating therefrom, this Court will not

disturb its rulings." Van Meter, 14 S.W.3d at 572. We are convinced that the

trial court gave due consideration to all the relevant circumstances. The court

justified its decision by noting that granting the credit was the equitable

outcome.

       It is important that the trial court employed a credit, rather than

reducing Chris's child support obligation. If the benefit payments ceased for

some reason, Chris would still be obligated to pay, as there would no longer be

anything for which to give him a credit. Cf. Board, 690 S.W.2d at 382 ("Should

the social security benefits be changed, the mother or custodian can look to the

estate for satisfaction of the basic obligation which remains intact."). But just

as in Miller, this means that the purpose of the support order is being satisfied

because substantial money, more even than required by the agreed support

order, is available for the benefit of the child.

      The mother claims that she settled for a lower child-support payment in

anticipation of the child's receiving dependent benefits as a supplement.

Although this may be part of an argument for seeking modification of the
                                      14
support agreement, assuming she could show a continuing change of

circumstances, it does not make the trial court's decision here an abuse of

discretion.

   B. Recoupment of the 22 months' support payments was proper.

       In her cross-appeal, the mother argues that even if a credit was

appropriate, the trial court erred in ordering her to pay back the $17,050 in

support that Chris paid during the 22 months the child was eligible for

dependent benefits before the benefits (and lump-sum back payment) were

awarded. Specifically, she claims that this recoupment award violates the

Social Security Act's anti-attachment provision and the rule that support can

only be modified prospectively.

       Social Security benefits are protected by what is commonly known as an

anti-attachment provision. It states:

       The right of any person to any future payment under this
       subchapter shall not be transferable or assignable, at law or in
       equity, and none of the moneys paid or payable or rights existing
       under this subchapter shall be subject to execution, levy,
       attachment, garnishment, or other legal process, or to the
       operation of any bankruptcy or insolvency law.

42 U.S.C.A. § 407.

       This Court has held, in accordance with the Supreme Court's

pronouncements on the subject, that this provision does not shield a person's

Social Security payments, once made, 4 because it is aimed largely at preventing



       4   There is even an exception to this anti-attachment provision for child-support
obligations that would allow a garnishment action against the Social Security
Administration. See 42 U.S.C. § 659(a) ("Notwithstanding any other provision of law
(including section 407 of this title ...), ... moneys (the entitlement to which is based
upon remuneration for employment) due from, or payable by, the United States ...
                                                15
the Social Security Administration from becoming a collections agency and to

prevent the depletion of a person's whole means of subsistence. See

Commonwealth, Cabinet for Health and Family Services v. Ivy, 353 S.W.3d 324,

338 (Ky. 2011) (applying Rose v. Rose, 481 U.S. 619 (1987)). The trial court's

recoupment order does not attempt to bind the Social Security Administration

in any way, aimed as it is only at recouping monies already paid out. Nor would

the recoupment order deprive the child of her entire means of support. Chris's

support payments are only part of the overall support due to the child; the

mother also has a statutory duty to support her child, and she has a

substantial income. Moreover, Chris is not seeking to lower the amount of

support he owed. That money was properly paid. Nor is he trying to recoup the

amount of the Social Security benefits that exceed his support obligation.

Instead, he is only seeking to recoup the amount that was effectively paid twice

once the Social Security lump-sum payment was made.

       That said, the mother cites a Supreme Court case with language strongly

suggesting that anti-attachment provisions like this one make the associated



(including any agency, subdivision, or instrumentality thereof) to any individual ...
shall be subject, in like manner and to the same extent as if the United States ... were
a private person, ... to any other legal process brought ... by an individual obligee, to
enforce the legal obligation of the individual to provide child support or alimony.").
Though this does not extend to Supplemental Security Income, Sykes v. Bank of
America, 723 F.3d 399, 405 (2d Cir. 2013); Commonwealth, Cabinet for Health and
Family Services v. Ivy, 353 S.W.3d 324, 339 (Ky. 2011), it expressly includes Social
Security retirement and disability benefits, see 42 U.S.C.A. § 659(h)(1)(A)(ii) (defining
covered moneys as "periodic benefits ... or other payments ... under the insurance
system established by subchapter II of this chapter").
       This exception would allow Chris's Social Security benefits to be garnished if he
was not paying his support obligation. But he, in fact, seeks the opposite: he would
dip into the child's dependent benefits to recoup his already paid support. If the § 407
anti-attachment provision applied to this case, the exception in § 659 would not.
                                            16
benefits payments sacrosanct and beyond invasion, even once paid. See

Philpott v. Essex County Welfare Bd., 409 U.S. 413, 415-16 (1973) ("On its face,

the Social Security Act in § 407 bars the State of New Jersey from reaching the

federal disability payments paid to Wilkes. The language is all-inclusive .... But

§ 407 does not refer to any 'claim of creditors'; it imposes a broad bar against

the use of any legal process to reach all social security benefits. That is broad

enough to include all claimants, including a State.").

      But later iterations of the Supreme Court have declined to read such

language so broadly, and concluded instead that they have the limited

purposes discussed above. See Rose, 481 U.S. at 630. Though the Supreme

Court has not expressly receded from Philpott, the holding in Rose is certainly

inconsistent with it. And Philpott, had it been addressed in Rose, would have

been readily distinguishable because the beneficiary in the older case had no

other income except for the state-paid benefits that the state was seeking to

recoup upon the payment of the lump-sum amount for back Social Security

benefits. In that instance, the state's attempt to recoup would have consumed

70 to 80% of the man's income for the relevant time period. That is not the case

here, where the recoupment would return only a fraction of the money

available to the child, and was aimed only at the amount that amounted to a

double-payment of support. Even after recoupment, an amount equal to all of

the Social Security payments made should be available (though allegedly

already spent) for the child's benefit.

       That leaves the mother's argument that the trial court's order violated

the rule against retrospective changes to child support. "In this jurisdiction, it
                                          17
is settled that support payments, once accrued, are fixed and may not be

modified by the trial court, and any change in the amount of support only

operates prospectively." Clay v. Clay, 707 S.W.2d 352, 353 (Ky. App. 1986).

Thus, "restitution or recoupment of excess child support is inappropriate

unless there exists an accumulation of benefits not consumed for support." Id.

at 354. To support such a decision, the trial court must make a finding that

there has been an accumulation of benefits, which is unlikely to occur except

in "an exceptional case." Id.

      Arguably, this is such an exceptional case because there was an

accumulation of benefits available for recoupment. The trial court specifically

found the mother "has the funds available for repayment as a result of the

lump sum payment from Social Security for retroactive benefits." The mother,

of course, claims the trial court's finding was erroneous because she had

already spent the money. But there was proof to support the court's finding.

       And more importantly, the no-recoupment rule does not apply to the

circumstances of this case. The rule is aimed at instances where the "support

order is reversed or vacated on appeal," at which point "there is a strong

inference that recoupment or restitution should be disallowed." Id. at 353. For

example, if support is set at a certain amount on day one, and the obligated

parent successfully challenges that amount as erroneously high on appeal,

resulting in a reduction of the support obligation, the no-recoupment rule

would ordinarily prevent the parent from being reimbursed the amount that

was overpaid between the trial court's order and the appellate decision.



                                        18
      But Chris did not obtain a modification of his support, either from the

trial court or on appeal. Instead, he paid his support obligation over a period of

22 months in which the child was later found entitled to receive Social Security

dependent benefits. Once those benefits were awarded, Chris properly obtained

a credit for those benefits against his support obligation going forward. He also

sought a credit against the past, already-satisfied obligation, which could only

be accomplished through a recoupment award.

      The circumstances in this case are simply different from those where a

parent later obtains a modification of support on appeal. There was indeed a

lump-sum award here against which recoupment could be legitimately taken.

The trial court, by allowing Chris to recoup prior payments after the award of a

lump-sum Social Security dependent benefit, "did not retrospectively modify

the child support provisions of the order." Van Meter v. Smith, 14 S.W.3d 569,

572 (Ky. App. 2000). Instead, it gave him the credit he would have been

entitled to had the child been receiving its benefits from the first day of

eligibility. See Board v. Board, 690 S.W.2d 380, 381 (Ky. 1985) ("There is a

distinction between crediting an obligation with payment made from another

source and increasing, decreasing or terminating, or otherwise modifying a

specific dollar amount."). The child still received all the money that Chris was

obligated to pay—and then some, since the lump-sum award exceeded Chris's

support obligation during the 22-month period. The trial court simply

recognized the reality of what had happened: the child received her support

from a different source, after the fact. Thus, the no-recoupment rule is not

applicable to this case.
                                         19
      The only question is whether the trial court abused its discretion in

ordering the mother to reimburse Chris for the support payments made during

the 22 months when the child was eligible for Social Security benefits. This

Court concludes that it did not.

      The trial court considered all the circumstances, and found that the

mother had "the funds available for repayment as a result of the lump sum

payment from Social Security for retroactive benefits." The mother points to

evidence that she had already spent the money by the time Chris sought the

recoupment, suggesting the funds were unavailable. But even if so, the

expenditures would have been made knowing that a motion for recoupment

was pending, and in an obvious effort to dispose of the fund available for

recoupment.

      And Chris points out that there is evidence that some of the claimed

payments were made before the award, that it is less than clear that the

payments were made from the awarded funds, and that the mother had a

substantial income (presumably one sufficient enough to show that she could

have paid whatever she did out of her own pocket). It is apparent that the trial

court simply did not believe the mother's accounting of the funds. The court's

finding in that respect is not clearly erroneous.

      Furthermore, the court concluded that it would be "unfair and unjust to

[Chris] ... to deny him the ability to recoup his overpayment from those funds."

This conclusion that the balance of the equities favored reimbursement for

Chris was not an abuse of discretion in light of all the circumstances.



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                                  III. Conclusion

      As explained above, the trial court had the discretion to award Chris a

credit against his child-support obligation for Social Security retirement

dependent benefits paid to the child, and it was not an abuse of that discretion

under the circumstances of this case to award the credit. Moreover, the trial

court did not violate the no-recoupment rule since a fund was available that

had not been paid out during the child support period in question, and

because there was no modification of Chris's support obligation. Consequently,

it was not error to order the mother to reimburse him for support payments

made during the 22-month period in which the child was eligible for Social

Security benefits that were later paid as a lump sum. For those reasons, the

decision of the Court of Appeals is reversed, and the order of the trial court is

reinstated.

      All sitting. All concur.


COUNSEL FOR APPELLANT/ CROSS-APPELLEE:

Callie Elizabeth Walton
Gwin, Steinmetz 85 Baird
401 W. Main Street
Suite 1000
Louisville, Kentucky 40202


COUNSEL FOR APPELLEE/CROSS-APPELLANT:

Nancy J. Shook
809 Bedfordshire Road
Louisville, Kentucky 40222




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