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,
                                                      A138872
v.

DAVID DAUGHERTY,                                      (Napa County

        Respondent.                                   Super. Ct. No. 26-28036)




NAPA COUNTY DEPARTMENT OF
CHILD SUPPORT SERVICES,

          Respondent.




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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. Harris, 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: _______________________




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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,
                                                     A138872
v.
DAVID DAUGHERTY,                                     (Napa County
                                                     Super. Ct. No. 26-28036)
        Respondent;


NAPA COUNTY DEPARTMENT OF
CHILD SUPPORT SERVICES,
            Respondent.


        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
obligation by failing to include in his income derivative Social Security 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. The 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.


                                                 1
       After a hearing, the court found that David’s income, for purposes of calculating
child support, was the monthly Social Security 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 based 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 for purposes 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 satisfy 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 Security 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.”


                                             2
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
       Melinda 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 other 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 the amount of support to be paid.” (See In re
Marriage of Denny (1981) 115 Cal.App.3d 543, 553–554.)
       Thus, the trial court did precisely what section 4504, subdivision (b) contemplates:
it credited the amount of the derivative disability benefits toward 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 4058, 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, as we have
noted, 42 U.S.C. section 402(d) provides that 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).)


                                              3
his children were. Social Security regulations confirm that the child, not the disabled
parent, is entitled to the child’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 property of the wife or child.”
       We 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.




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                                _________________________
                                Rivera, J.


We concur:


_________________________
Ruvolo, P. J.


_________________________
Reardon, J.




A138872


                            5
Daugherty v. Daugherty (A138872)


Trial court:        Napa County


Trial judge:        Hon. Philip A. Champlin


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 Quinn, Deputy Attorney General, for Respondent




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