[Cite as Whaley v. Hancock, 2013-Ohio-1648.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

BLAINE WHALEY                                     JUDGES:
                                                  Hon. W. Scott Gwin, P.J.
       and                                        Hon. William B. Hoffman, J.
                                                  Hon. Sheila G. Farmer, J.
STARK COUNTY CHILD SUPPORT
ENFORCEMENT AGENCY                                Case No. 2012CA00136

        Appellants
                                                  OPINION
-vs-

GERROD HANCOCK

        Appellee



CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas, Family Court Division,
                                               Case No. 2009JCV00288


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                        April 22, 2013


APPEARANCES:


For Appellee                                   For Appellant - Stark County Child
                                               Support Enforcement Agency


HEATHER A. SMITH                               ALICIA L. BOYLE
Smith Reed, LLC.                               Stark Co. Child Support Enforcement
Canton Daily News Building                     P.O. Box 21337
401 Tuscarawas Street West, Suite 300          Canton, Ohio 44701
Canton, Ohio 44702
Stark County, Case No. 2012CA00136                                                               2

Hoffman, J.


         {¶1}   Appellant Stark County Child Support Enforcement Agency appeals the

June 26, 2012 Judgment Entry entered by the Stark County Court of Common Pleas,

Family Court Division, in favor of Appellee Gerrod Hancock.

                             STATEMENT OF THE FACTS AND CASE1

         {¶2}   Appellee Gerrod Hancock is the father of a minor child, born November

11, 2007. Appellee has been ordered to pay child support in the amount of $349.14 per

month, with or without private health insurance, effective March 12, 2009. Appellee was

also ordered to provide private health insurance for the minor child or pay the additional

amount of $64.58 per month through Stark County Child Support Enforcement Agency

(CSEA) toward a cash medical account.

         {¶3}   On March 8, 2012, Appellee filed a motion with the trial court herein to

determine arrearages/overpayment. Specifically, Appellee sought a credit for derivative

Social Security benefits paid directly to the mother of the child for the benefit of the

minor child due to Appellee's award of Social Security Disability due to a temporary

disability. It is undisputed the minor child received derivative social security benefits

from November of 2010, through October of 2011, totaling $14,092.00. The benefits

were not collected through CSEA; rather, sent directly from the Social Security

Administration to the child's mother.

         {¶4}   The matter proceeded to hearing on June 26, 2012. Via Judgment Entry

of the same date, the trial court ordered Appellee is entitled to a credit on his monthly

child support obligation for those months the minor child received derivative benefit

1
    A full rendition of the underlying facts is unnecessary for our resolution of this appeal.
Stark County, Case No. 2012CA00136                                                     3


payments. The trial court further ordered Appellee is entitled to full credit toward his

cash medical account and processing fee obligations from the disability derivative

benefits paid to the minor child. Accordingly, the trial court ordered CSEA to apply the

derivative benefits received to both Appellee's cash medical account and child support

obligations, as well as, the processing fees. The trial court credited any overpayment to

future support and cash medical account obligations.

       {¶5}   Appellant Stark County Child Support Enforcement Agency now appeals,

assigning as error:

       {¶6}   “I. THE TRIAL COURT ERRED WHEN IT ORDERED CSEA TO GIVE

APPELLEE CREDIT AGAINST JFS-ASSIGNED CASH MEDICAL ARREARS FOR

DERIVATIVE        SOCIAL       SECURITY         BENEFITS     PAID     DIRECTLY       TO

APPELLANT/MOTHER.”

                                                 I.

       {¶7}   In Williams v. Williams, 88 Ohio St.3d 441 (2008), the Ohio Supreme

Court, in considering whether to credit social security benefits paid to dependent

children to an obligor’s child support obligation, held,

       {¶8}   “We have found that '[t]he overwhelming majority of states that have

considered this issue allow a credit for Social Security benefits paid to dependent

children.' Pontbriand v. Pontbriand (R.I.1993), 622 A.2d 482, 484. See, also,

Annotation, Right to Credit on Child Support Payments for Social Security or Other

Government Dependency Payments Made for Benefit of Child (1995), 34 A.L.R. 5th

447. We believe that this is the more equitable result. Therefore, we join those
Stark County, Case No. 2012CA00136                                                           4


jurisdictions that permit a disabled parent's child support obligation to be directly set off

by Social Security payments received on behalf of the minor child.

       {¶9}   "In so doing, we reject the reasoning espoused by the court of appeals

and the arguments made by appellee. Contrary to appellee's position, the Social

Security payments made on the child's behalf are not mere gratuities from the federal

government, nor do they constitute earnings by the child under R.C. 3113.215(B)(3)(f).

Instead, the payments arise simply because the obligor has paid into the Social Security

system and was found to be disabled. As stated by the Supreme Court of Alaska in

Miller v. Miller (1995), 890 P.2d 574, 576: '[T]he employee, who throughout his working

life has contributed part of the premiums in the form of deductions from his wages or

salary, should be deemed to have a vested right to the payments prescribed by the

statutory scheme, which in effect comprises the terms of the insurance policy. He has

earned the benefits; he is not receiving a gift.' We agree with this rationale and find that

Social Security payments are tantamount to earnings by the disabled parent.

       {¶10} "Furthermore, it is illogical to suggest that the granting of a credit will result

in a windfall to the obligor and will penalize the child by providing that child with less

money for his or her support. In essence, 'a credit for * * * Social Security benefits does

not retroactively modify the disabled parent's monthly child support obligation; it merely

changes the source of the payments.' In re Marriage of Cowan (1996), 279 Mont. 491,

500, 928 P.2d 214, 220. Therefore, where the disabled parent has no other source of

income due to his or her disability, the receipt of Social Security payments actually

ensures that the obligor's child support obligation will be at least satisfied.
Stark County, Case No. 2012CA00136                                                        5


         {¶11} "Consequently, we hold that a disabled parent is entitled to a full credit in

his or her child support obligation for Social Security payments received by a minor

child. Accordingly, appellant's child support obligation shall be set off by those Social

Security payments received on Jessica's behalf. Since the amount of Social Security

payments Jessica received exceeds what appellant owed, the trial court shall enter

judgment reflecting that no child support is owed from the time she first received the

Social Security benefits."

         {¶12} Appellee argues the holding in Williams should be extended to provide

credit for derivative benefits paid against his cash medical account obligation. CSEA

argues the Court in Williams never contemplated such cash medical account payments

because they were not part of Ohio law until many years later. CSEA asserts it would

be inequitable to credit Appellee for the derivative benefits paid and never received by

the State, as the State has continued to provide cash medical benefits to the minor

child.

         {¶13} Upon review of the holding in Williams, we agree with the rationale set

forth by that Court finding Social Security payments are tantamount to earnings by the

disabled parent. Where, as here, the disabled parent has no other source of income

due to his or her disability, we find the receipt of Social Security payments ensures both

the obligor's child support obligation and cash medical accounts payments will be

satisfied. The payment of the benefits directly to the child's mother instead of directly to

the CSEA does not change the fulfillment of the obligation.

         {¶14} We find the trial court did not err in crediting Appellee for the payments

made and in applying future credits to both of Appelle’s obligations.
Stark County, Case No. 2012CA00136                                                 6


       {¶15} The sole assignment of error is overruled.

       {¶16} The June 26, 2012 Judgment Entry of the Stark County Court of Common

Pleas, Family Court Division, is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Farmer, J. concur

                                             s/ William B. Hoffman _________________
                                             HON. WILLIAM B. HOFFMAN


                                             s/ W. Scott Gwin _____________________
                                             HON. W. SCOTT GWIN


                                             s/ Sheila G. Farmer __________________
                                             HON. SHEILA G. FARMER
Stark County, Case No. 2012CA00136                                                7


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


BLAINE WHALEY                             :
                                          :
       and                                :
                                          :
STARK COUNTY CHILD SUPPORT                :
ENFORCEMENT AGENCY                        :
                                          :
       Appellants                         :
                                          :
-vs-                                      :        JUDGMENT ENTRY
                                          :
GERROD HANCOCK                            :
                                          :
       Appellee                           :        Case No. 2012CA00136


       For the reason stated in our accompanying Opinion, the June 26, 2012 Judgment

Entry entered by the Stark County Court of Common Pleas, Family Court Division, is

affirmed. Costs to Appellant Stark County Child Support Enforcement Agency.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ W. Scott Gwin _____________________
                                          HON. W. SCOTT GWIN


                                          s/ Sheila G. Farmer __________________
                                          HON. SHEILA G. FARMER
