Filed 7/17/18
                           CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                    DIVISION ONE

                                STATE OF CALIFORNIA


Y.H.,                                            D071859

        Plaintiff and Respondent,

        v.                                       (Super. Ct. No. DN125635)

M.H.,

        Defendant and Respondent;

SAN DIEGO COUNTY DEPARTMENT OF
CHILD SUPPORT SERVICES,

        Intervener and Appellant.


        APPEAL from an order of the Superior Court of San Diego County,

Adam Wertheimer, Commissioner. Affirmed as modified.

        Xavier Beccera, Attorney General, Julie Weng-Gutierrez, Senior Assistant

Attorney General, and Linda M. Gonzalez and Marina L. Soto, Deputy Attorneys General

for Intervener and Appellant.

        Doppelt & Forney, Damon B. Forney; Feuerstein, Murphy & Beals, Bruce M.

Beals; and Debra Deck Scott for Defendant and Respondent.

        No appearance for Plaintiff and Respondent.
       This appeal presents an issue of first impression in California. M.H. (Father), a

child-support obligor, became disabled and applied for Social Security Disability

Insurance (SSDI) for himself and his daughter. Family Code section 4504, subdivision

(b) requires derivative benefits received by the child of a disabled parent to be credited

against a noncustodial obligor's child support.1 In this case, the Social Security

Administration (SSA) took six years to approve Father's application. In 2015, it made a

lump-sum payment for past-due derivative benefits to custodial parent Y.H. (Mother), as

Daughter's representative payee. In the intervening six years, Father had continued to

pay child support and was not in arrears. Does section 4504, subdivision (b) permit

retroactive child support credit from Daughter's lump-sum payment where there is no

child support arrearage? The trial court determined it does, and we agree. We modify

the order solely to correct a clerical error and, as so modified, affirm.2




1      Further statutory references are to the Family Code.

2       We use the term "credit" throughout this opinion to refer to the attribution of
Daughter's lump-sum payment to Father's past child support obligation. At this point in
time we express no view as to whether this attribution should take the form of an offset
against future child support obligations or a refund of excess child support paid. The trial
court did not order an offset or refund and limited its ruling to whether credit could be
applied in some manner. We follow the same approach, leaving it to the parties and the
trial court to determine in future proceedings exactly how Father's credit will be effected.
                                              2
                  FACTUAL AND PROCEDURAL BACKGROUND

       Father and Mother married in 2001, separated a year later, and divorced in 2003.

Their only child, Daughter, was born in 2002. Pursuant to the stipulated marital

settlement agreement, Mother had sole physical custody, the parents shared joint legal

custody, and Father agreed to pay guideline child support.

       Father was honorably discharged from the United States Marine Corps in 2004

and was found permanently disabled as a result of injuries sustained in combat in Iraq.

At some point, Father began to receive Department of Veteran Affairs (VA) disability

benefits.

       Father's child support obligation changed over the years. At Mother's request, San

Diego County Department of Child Support Services (DCSS) intervened in February

2006 to provide child support enforcement services.3 Effective March 2007, Father's

obligation was $359 per month.

       In 2011, DCSS filed a motion to modify child support. Both parents submitted

income and expense declarations. Father was living solely on VA disability benefits of

$2,870 per month. Mother was unemployed and finishing her last year of a bachelor's

degree. Effective September 1, 2012, Father's child support obligation was increased to

$719 per month.




3      Mother was at some point receiving public assistance. However, by the time of
the hearing on the pertinent request for order, all child support payments by Father were
going directly to Mother.
                                            3
       Meanwhile, Father had applied for SSDI for himself and derivative benefits for his

daughter. (42 U.S.C. §§ 402, subd. (d), 423, subd. (a).) After six years, his application

was finally approved on June 29, 2015. The SSA determined that Father was entitled to

benefits starting June 1, 2009. He was to receive $1,088 per month plus a lump-sum

payment of $78,057 reflecting past due benefits that accrued while his application was

pending. The SSA withheld $19,514 of that lump-sum payment for attorney's fees, and

Father received a check for $61,121.65.

       At roughly the same time, the SSA notified Mother that she had been chosen as

the representative payee for Daughter's derivative benefits. (20 C.F.R. §§ 404.2001,

subd. (b)(2), 404.2021, subd. (c)(1).) Due to Father's disability, Daughter was entitled to

receive derivative benefits of $596 per month beginning July 2015. The SSA also sent

Mother a lump-sum check for $41,384 reflecting past-due benefits that accrued while

Father's application was pending.

       For some months, Mother received Daughter's derivative benefits without

notifying DCSS, resulting in Father overpaying child support. During this period, the

SSA was withholding $544 from Father's monthly SSDI benefits. At some point DCSS

started crediting Daughter's monthly benefit of $596 against Father's monthly support

obligation of $719. Starting in March 2016, DCSS withheld $123 per month from

Father's SSDI for the balance and credited Father for his overpayments during the

previous nine months.

       Father filed a request for order seeking (1) an audit by DCSS of all child support

payments made to Mother, and (2) credit for Daughter's lump-sum derivative benefit

                                             4
payment. At the time he filed his motion, Father did not know how much Daughter had

received as a lump sum or the amount of her monthly derivative benefit. Father sought

discovery from Mother and filed a motion to compel when she failed to respond. He later

obtained the information by issuing a subpoena to the SSA.

       The court heard argument on Father's request for order and motion to compel in

December 2016. Mother received notice but did not appear. Because Father had

obtained the information needed for his motion, the court denied his motion to compel

but imposed a $2,500 discovery sanction on Mother.

       Although it had not filed a brief, DCSS asked to be heard on Father's request for

order. It argued (as it does on appeal) that the lump-sum payment Mother received in

July 2015 could only be credited under section 4504, subdivision (b) toward that month's

child support obligation and then to any arrears. Because Father had paid his child

support obligation in full, and in fact had a credit balance at the time of the hearing, he

had no arrears to which the lump sum could be credited.

       DCSS acknowledged that California law required it to reimburse any overpayment

of child support. It also admitted that if Father had failed to pay child support during the

six years he waited for the SSA to approve his disability benefits, it would have filed an

enforcement action. But because Father had paid his child support, he was not in arrears

and, according to DCSS, not entitled to credit for the lump-sum derivative benefit

payment received by Mother. DCSS claimed this interpretation followed a plain reading

of section 4504, subdivision (b) and Code of Civil Procedure section 695.221.



                                              5
       The trial court rejected DCSS's argument and granted Father's motion. It placed

great weight on the "shall be credited" language in section 4504, subdivision (b) and

explained that the statute mandated credit against Father's child support obligation. It

further noted that as a result of flaws in the SSA's system, a person often waited years for

a benefit claim to be approved. When Mother finally received Daughter's past-due

derivative benefits in the form of a lump-sum payment, that payment had to be

retroactively credited under section 4504 for all the intervening months Daughter

received such benefits.

       Father's counsel erroneously stated that Daughter's monthly derivative benefit had

remained constant at $596 since June 2009. On that basis, the court ordered DCSS to

retroactively apply $596 toward Father's monthly child support obligation commencing

June 2009. It ordered Daughter's derivative benefits to be applied first against Father's

child support obligation before applying any voluntary payments made by Father. Any

excess would be subject to an offset or refund. The court rejected DCSS's contention that

this was the "functional equivalent" of ordering reimbursement of Daughter's derivative

benefits.

       DCSS requested a statement of decision, which was not filed until after DCSS

filed a notice of appeal. On July 19, 2017, we denied Father's motion to augment the

record with the statement of decision and related filings.

                                      DISCUSSION

       The thrust of DCSS's argument is that section 4504, subdivision (b) prohibits

applying retroactive credit for past-due derivative benefits when a noncustodial obligor

                                             6
parent is current in child support and owes no arrears. Because this presents a purely

legal issue on undisputed facts, we apply the de novo standard of review. (In re

Marriage of Hall and Frencher (2016) 247 Cal.App.4th 23, 26.) " ' "We begin with the

fundamental rule that our primary task is to determine the lawmakers' intent." ' "

" 'Where the language of the statute is clear and unambiguous, we follow the plain

meaning of the statute and need not examine other indicia of legislative intent.' " "Where

appropriate, we turn to legislative history as an extrinsic aid to evaluate legislative

intent." (N.S. v. D.M. (2018) 21 Cal.App.5th 1040, 1047, citations omitted.)4

                                              A

       Federal law provides for two types of Social Security insurance benefits—old age

benefits and disability benefits. (Elsenheimer v. Elsenheimer (2004) 124 Cal.App.4th

1532, 1538.) Father received benefits under the Social Security Disability Insurance

Program. (42 U.S.C. § 423, subd. (a).)5 A child not living in the same household as the

disabled person may receive derivative benefits on account of a parent's disability. (42

U.S.C. § 402, subd. (d).) If a beneficiary is under the age of 18, the SSA will generally

4      DCSS's interpretation of section 4504 is not binding. "Where the meaning and
legal effect of a statute is the issue, an agency's interpretation is one among several tools
available to the court. Depending on the context, it may be helpful, enlightening, even
convincing. It may sometimes be of little worth." (Yamaha Corp. of America v. State
Bd. of Equalization (1998) 19 Cal.4th 1, 7−8.)

5      "[D]isabled persons are entitled to benefits under two distinct programs
administered by the Social Security Administration." (In re S.M. (2012) 209 Cal.App.4th
21, 28.) Social Security Disability Insurance (SSDI) provides benefits to disabled
persons and their dependents who have paid premiums to the insurance program through
payroll deductions. (Ibid.) By contrast, Supplemental Security Income (SSI) provides
benefits to indigent persons who are elderly, blind, or disabled. (Id. at pp. 28−29.)
                                              7
pay benefits to a representative payee, preferably the custodial parent. (20 C.F.R.

§§ 404.2001, subd. (b)(2), 404.2021, subd. (c)(1).) Mother received Daughter's

derivative benefits as her representative payee.

       A child's Social Security insurance benefits are primarily intended for the support

of a child. (20 C.F.R. § 404.2040, subd. (a)(1); In re Marriage of Denny (1981) 115

Cal.App.3d 543, 554.) State law requires such benefits to be applied as a credit to a

noncustodial parent's child support obligation. Section 4504, subdivision (b) provides:

          "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. Any
          payments shall be credited in the order set forth in Section 695.221
          of the Code of Civil Procedure."

       The facts here are not in dispute. The SSA took six years to approve Father's 2009

request for Social Security disability benefits. Father continued to pay child support

while his application was pending. As a result, when the SSA sent Mother a lump-sum

payment for six years of past-due derivative benefits in July 2015, Father was not in

arrears. DCSS argues that because he was not in arrears, there was nothing to credit

Daughter's lump-sum derivative benefit to. It points to Code of Civil Procedure section

695.221, which specifies the order in which credit must be applied:

          "Satisfaction of a money judgment for support shall be credited as
          follows: [¶] (a) The money shall first be credited against the current
          month's support. [¶] (b) Any remaining money shall next be

                                             8
          credited against the principal amount of the judgment remaining
          unsatisfied. If the judgment is payable in installments, the remaining
          money shall be credited against the matured installments in the order
          in which they matured. [¶] (c) Any remaining money shall be
          credited against the accrued interest that remains unsatisfied."

       The parties have not cited, nor have we found, any California authorities

addressing this scenario. As we explain, we agree with the trial court that a retroactive

credit is permitted under section 4504 notwithstanding Father's lack of arrears. As the

court reasoned, the plain language of section 4504 states that a child's derivative benefits

"shall be credited" toward a noncustodial parent's child support obligation. (§ 4504,

subd. (b).)6 The statute requires credit to be applied in a specific order—first to the

current month's support, then to arrears (principal first, then accrued interest). (Code Civ.

Proc., § 695.221.) But this payment schedule does not limit the statutory mandate to

credit a child's derivative benefits toward a noncustodial parent's child support obligation,

nor does it specify how to apply the remainder of the credit if the arrears (if any) are

insufficient to exhaust the entire amount.

       Daughter became entitled to benefits on June 1, 2009, at the same time as Father.

In July 2015, Mother received a check for $41,384 reflecting a lump-sum payment for

past-due monthly derivative benefits between June 2009 and June 2015 and a payment of




6     An exception, not applicable here, arises when "the payments made by the federal
government were taken into consideration by the court in determining the amount of
support to be paid." (§ 4504, subd. (b).)
                                              9
$596 for the month of July 2015.7 Under a plain reading of section 4504, the court had

to apply the July benefit of $596 against Father's "current month's support [obligation]"

of $719. (Code Civ. Proc., § 695.221, subd. (a).) DCSS agrees up to this point. Yet it

disagrees with the next logical step. There being no arrears, the court had to find a

different way to satisfy the mandate that "payments for the support of the child made by

the federal government . . . shall be credited" toward Father's child support obligation.

(§ 4504, subd. (b).) Any other reading would impose a nonexistent limitation on the

"shall be credited" language of section 4504.

       Father's payments during the six years he waited for SSA's approval were

essentially an advance of his support obligation. Once Daughter's derivative benefits

were approved and paid, the statute required a credit against Father's obligation. (§ 4504,

subd. (b).) The court met the statutory mandate by ordering retroactive child support

credit for the months covered by the lump-sum payment for past-due benefits. This fell

within its broad enforcement power to determine the manner in which its child support

order is enforced. (§ 290.) "[T]he trial court may give credit for past overpayment (In re

Marriage of Peet (1978) 84 Cal.App.3d 974, 980−981)" . . . "or take into consideration

'whether the debtor had satisfied or otherwise discharged the obligation imposed by the


7       The SSA's July 2015 letter to Mother contains a typographical error. It states that
the $41,384 lump sum payment covers derivative benefits between June 2009 and June
2015. Elsewhere, the letter breaks down benefits by year. Subtracting benefits paid from
2009 to 2014 from the lump sum shows that $4,172 is attributable to the 2015 partial
year. Dividing this figure by the $596 monthly rate in effect for 2015 reveals that the
lump sum covers seven months of 2015—i.e., in total, June 2009 through July 2015. This
is further corroborated by the SSA's ledger showing the lump sum payment followed by
payments for August through December in 2015.
                                             10
original order.' " (Keith G. v. Suzanne H. (1998) 62 Cal.App.4th 853, 858−859.) That is

precisely what the court did.

                                              B

       To the extent the statutory language is ambiguous, we turn to the legislative

history. The parties agree on the legislative history but disagree as to its import. As we

explain, Father is correct that the legislative history supports the application of retroactive

credit from Daughter's lump-sum payment.

       Previously, section 4504, subdivision (b) provided:

          "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 each month shall
          be credited toward the amount ordered by the court to be paid for
          that month 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. If a lump-sum payment which represents payments for
          more than one month is received by the custodial parent or other
          child support obligee, credit shall be given for each month for which
          the lump sum payment was made."

(Former § 4504, Stats. 1996, ch. 912, § 2.) In other words, the statute required payments

received "each month" to be credited toward the child support obligation "for that

month." (Ibid.) Although the statute allowed credit for a lump-sum benefit to the extent

the obligor owed support for the months represented by the benefit payment, it did not

allow credit to be applied to other arrears. Accordingly, In re Marriage of Robinson

(1998) 65 Cal.App.4th 93 affirmed an order denying credit against arrears because of the

"directive that Social Security payments be credited against the amount 'to be paid for

                                              11
that month.' " (Id. at p. 96.) It reasoned that the statute did not "authorize payments to be

credited to amounts due in prior months, nor to accrued interest on those arrearages."

(Ibid.)

          In 2004, the Legislature amended section 4504 and broadened how federal

disability benefits could be credited toward an obligor's child support. (Stats. 2004, ch.

305, § 4, p. 3234.) DCSS sponsored the bill to implement recommendations of a

legislatively mandated "Collectability Study" and "relieve the child support arrears crisis

in California." (Sen. Com. on Judiciary, Analysis of A.B. No. 2669 (2003−2004 Reg.

Sess.) as amended Jun. 16, 2004, p. 1.) The 2004 amendment sought to "prevent non-

custodial parents from becoming discouraged and disappearing from their children's lives

completely" because they could not service their debt. (Assem. Com. on Judiciary,

Analysis of A.B. No. 2669 (2003−2004 Reg. Sess.) as amended Mar. 25, 2004, p. 3.)

          Whereas the statute previously required credit "toward the amount ordered by the

court to be paid for that month," the amended statute simply requires credit "toward the

amount ordered by the court to be paid." (Compare § 4504, former subd. (b), Stats. 1996,

ch. 912, § 2 with § 4504, subd. (b); Italics added.) This change eliminated the need for

the last sentence, about how to apply "a lump-sum payment which represents payments

for more than one month." As the Senate Judiciary Committee report states, the 2004

amendment was designed to "credit the noncustodial parent for the full amount of the

dependent's benefits received, regardless of the time period the benefits represent." (Sen.

Com. on Judiciary, Analysis of A.B. No. 2669 (2003−2004 Reg. Sess.) as amended Jun.

16, 2004, p. 5.)

                                              12
       The 2004 amendment incorporated Code of Civil Procedure section 695.221 to

further clarify that excess credit could be applied toward child support arrears. (In re

Marriage of Hall and Frencher, supra, 247 Cal.App.4th at p. 27 [distinguishing In re

Marriage of Robinson, supra, 65 Cal.App.4th 93 based on the amendment].) As noted,

that statute in turn requires credit to be applied first against the current month's support

obligation and then against "unsatisfied" principal and interest. (Code Civ. Proc.,

§ 695.221, subds. (b)–(c).) DCSS claims the word "unsatisfied" shows that credit may be

applied only to the current month and to arrears, not to past child support payments that

were made in full. But neither the plain language nor the legislative history supports that

view. We agree with Father that "the aim of the legislature was to broaden how a lump-

sum payment could be credited to a noncustodial parent's child support obligation, not

narrow it." (Compare In re Marriage of Hall and Frencher, supra, at p. 27 [Social

Security payments could be applied to arrears owed before the start date of those

payments] with In re Marriage of Robinson, supra, at p. 96 [rejecting application to

arrears].)

       In interpreting a statute, we must bear in mind the statutory purpose. (Dyna-Med,

Inc. v. Fair Employment & Housing Commission (1987) 43 Cal.3d 1379, 1387.) "Where

uncertainty exists consideration should be given to the consequences that will flow from

a particular interpretation." (Ibid.) Child support proceedings focus on the best interests

of the child. (§ 4053, subd. (e); see In re Marriage of Ayo (1987) 190 Cal.App.3d 442,

451.) Several state and federal laws encourage the timely and consistent payment of

child support. (See § 290 [permitting enforcement "by execution, the appointment of a

                                              13
receiver, or contempt" or other means]; Moss v. Superior Court (1998) 17 Cal.4th 396

[contempt sanctions]; § 5230, subd. (a) [earnings assignment orders]; Code Civ. Proc.,

§§ 685.010, 685.020 [interest on arrears]; Assem. Com. on Judiciary, Analysis of A.B.

No. 2669 (2003−2004 Reg. Sess.) as amended Mar. 25, 2004, p. 3 [charging interest

furthers the mission to "focus non-custodial parents on the importance of paying their

child support debt as compared to other debts they might owe"]; Pen. Code, § 270

[criminal penalties]; 18 U.S.C. § 228 [criminal penalties as to out-of-state child]; see also

42 U.S.C. § 652, subd. (k)(2) [passport denial or revocation]; § 17520, subds. (b) & (e)

[state license denial or revocation].)

       DCSS's interpretation would lead to the perverse consequence of encouraging

arrears by an obligor who has applied for federal benefits. Courts in other states have

rejected interpretations similar to the one offered by DCSS for this very reason:

           "If we were to limit a payor's credit entitlement to only situations of
           'unpaid support,' we would encourage disabled payors who
           nonetheless have the ability to pay support, to terminate child
           support payments in anticipation that potential future social security
           disability payments will eventually make up the shortfall. That
           would leave the child without child support during this interim, a
           result clearly contrary to the public policy underpinning child
           support."

(Paulhe v. Riley (Wis. App. 2006) 722 N.W.2d 155, 161 (Paulhe); see In re Marriage of

Allen (Ariz. App. 2016) 386 P.3d 1287, 1290 ["applying a credit for lump sum derivative

benefits only when the obligor owes arrears would create an incentive to incur arrears,

and would punish obligors with pending social security applications who keep their

support payments current"]; In re Marriage of Stephenson & Papineau (Kan. 2015) 358


                                             14
P.3d 86, 93−94 ["since the fundamental purpose of child support is to timely provide for

the ongoing needs of a child, the law should not discourage an obligor from making

continuous and timely payments"] (Stephenson); Rathbone v. Corse (Vt. 2015) 124 A.3d

476, 482 ["The policy of the child-support statute is not served by discouraging an

obligor parent from making ongoing payments while waiting—possibly for years—for an

SSDI benefit to be credited against an arrearage that accrues between the initial

application for the benefit and its award."], footnote omitted (Rathbone).)

       DCSS responds that it could have filed an enforcement action if Father had

withheld support in anticipation of receiving disability benefits. But the fact that a

defaulting parent may eventually face a writ of execution, contempt citation, or other

enforcement order does not eliminate the financial harm inflicted on a child in the interim

when a noncustodial parent stops paying child support.

       "A parent's first and principal obligation is to support his or her minor children

according to the parent's circumstances and station in life." (§ 4053, subd. (a).) Section

4504, subdivision (b) accounts for Father's "circumstances and station" by requiring

Daughter's derivative benefits be credited toward his child support obligation. Through

no fault of his own, Daughter did not receive benefits for six years after she became

eligible. Father had no control over how long it would take to determine his eligibility.

To his credit, he honored his child support obligation in the interim. There is no basis in




                                             15
law or equity for Father to be worse off because he ensured his child was supported while

waiting an indeterminate number of years for the SSA to process his application.8

       There is likewise no purpose in giving Daughter (and, in turn, Mother) a windfall

that hinges on some unknown period of processing delay. Had the delay been only six

months, under DCSS's view, Father would have had to pay less net child support.

Guideline child support (§ 4050 et seq.) is designed to cover Daughter's reasonable needs

consistent with her best interests. (Y.R. v. A.F. (2017) 9 Cal.App.5th 974, 983−984;

§ 4053, subd. (e).) As Father argues, the purpose is not to obtain as much child support

as possible even through overpayment. (See In re Marriage of Wilson (2016) 4

Cal.App.5th 1011, 1018 [enforcement of arrears could result in inequitable windfall to

custodial parent to the extent the arrears bore "no relation to any support or care Minor

actually received"].)9 Father satisfies his legal duty when Daughter receives her monthly

child support. It is immaterial whether the source is Father or Daughter's derivative

benefits. Neither Mother nor Daughter has a legal right to more.




8      DCSS contends courts may not rely on equitable principles "to avoid a clearly
defined statutory mandate." Because we have not found any such "clearly defined
statutory mandate," we need not reach that argument.

9      DCSS argues its construction of section 4504 serves legitimate public purposes of:
"1) maximizing support payments received by families, 2) reducing largely uncollectable
support arrears totaling in the billions of dollars, and 3) improving California's
performance on federal incentive measures to ensure increased funding for the State's
Title IV-D child support program." These macro-level policy objectives cannot justify an
inequitable windfall based on an overpayment of child support in an individual case.
                                            16
       DCSS argues section 4504 seeks only "to provide relief to obligor parents who

were/are unable to meet their support obligation without assistance" and that Father was

not such a parent. But the statute is not so limited. Section 4504, subdivision (b) "is

intended to mitigate the support obligation of living, noncustodial parents who by reason

of disability or retirement are in reduced financial circumstances." (10 Witkin, Summary

of Cal. Law (11th ed. 2017) Parent & Child, § 448, p. 559, italics added.) Father was

such a person; he was permanently disabled from combat-related injuries and relied

solely on VA disability benefits to cover expenses and child support until his SSDI

application was approved.

       Next, DCSS claims credit should be denied because the federal government, not

Father, actually paid Daughter's derivative benefit. But pursuant to section 4504,

subdivision (b), Daughter's benefit "shall be credited" toward Father's child support

obligation. Father overpaid child support during the six-year period regardless of who

funded the benefit. Moreover, Daughter received SSDI, not SSI. She was entitled to this

benefit as a result of Father's contributions to the insurance program in years worked,

regardless of how her derivative benefits were actually paid. (In re S.M., supra, 209

Cal.App.4th at p. 28.)

       Finally, relying on federal statutes and regulations, DCSS argues that allowing a

credit might force Mother "to locate funds unrelated to the child's lump sum benefit

payment" or offset the amount against Father's ongoing child support obligation. As a

result, it claims, "custodial parents would be reluctant to utilize payments made by the

obligor during the application period for the child's support for fear of being burdened

                                            17
with having to pay a portion, if not all of it back in the event Social Security derivative

benefits are granted to the child."

       DCSS is correct that a representative payee must use benefit payments "for the

beneficiary's current maintenance"—i.e., for "obtaining food, shelter, clothing, medical

care, and personal comfort items." (20 C.F.R. § 404.2040, subd. (a)(1).) In general,

benefits must be used to promote the beneficiary's best interest. (20 C.F.R. § 404.2035,

subd. (a).) The payee may use benefit payments to satisfy a creditor as to the

beneficiary's prior debt "only if the current and reasonably foreseeable needs of the

beneficiary are met." (20 C.F.R. § 404.2040, subd. (d).) Excess funds must be conserved

or invested in trust for the beneficiary. (20 C.F.R. § 404.2045, subd. (a).) The payee is

"responsible for paying back misused benefits." (20 C.F.R. § 404.2041, subd. (a).)

Moreover, under the anti-attachment provision, "none of the moneys paid . . . under this

title [42 U.S.C. § 401 et seq.] shall be subject to execution, levy, attachment,

garnishment, or other legal process . . . . " (42 U.S.C. § 407, subd. (a).)

       Simply put, none of these statutes or regulations address lump-sum payments for

past-due benefits. We see nothing in these provisions preventing the use of benefit

payments to credit an overpayment of child support that was advanced and used for the

child's current maintenance. Only if we prevent Mother from making any refund from

the lump-sum do we encounter the problem DCSS identifies—a custodial parent

declining to use payments for the child's support while the noncustodial parent's

application for federal benefits is pending.



                                               18
       The anti-attachment provision (42 U.S.C. § 407, subd. (a)) aims at "precluding

beneficiaries from diverting their social security payments away from the statute's

seminal goal of furnishing financial, medical, rehabilitative and other services to needy

individuals." (Department of Health & Rehabilitation Services v. Davis (5th Cir. 1980)

616 F.2d 828, 831.) Father is not using legal process to gain control over daughter's

derivative benefits. Nor is he a creditor looking to collect from Daughter's benefits to

satisfy a debt at the expense of her current support. Instead, he advanced moneys to

provide for Daughter's current support in expectation of receiving credit sometime in the

future. Allowing credit does not run afoul of federal statutes or regulations restricting the

use of benefit payments or frustrate the policies underlying social security benefits and

child support. (See In re Marriage of Denney, supra, 115 Cal.App.3d at p. 554 ["The

purpose of providing social security disability benefits for minor children is to provide

support."]; Y.R. v. A.F., supra, 9 Cal.App.5th at pp. 983−984 [child support provides for a

child's reasonable needs]; Black's Law Dictionary (10th ed. 2014) [child support is "[a]

parent's legal obligation to contribute to the economic maintenance and education of a

child"].)

       Indeed, DCSS overlooks the fact that Father's disability payments are garnished

each month to cover child support. This is allowed because of a carve-out to the anti-

attachment provision applicable to child support and alimony. (42 U.S.C. § 659, subd.

(a); 20 C.F.R. § 404.1820, subd. (b).) The same exception would seem to apply to

Mother and allow her to refund child support overpayments resulting from Daughter's

receipt of past-due benefits.

                                             19
       The court rejected DCSS's argument that giving credit would be the functional

equivalent of ordering reimbursement from Daughter's derivative benefits. It explained it

was ordering credit based on Father's overpayment of child support.

DCSS takes issue with this "fictional distinction." We tend to agree, although it does not

help DCSS. As a natural custodial parent, Mother was exempted from the rule

prohibiting commingling of a representative payee's funds with a beneficiary's payments.

(20 C.F.R. § 404.2035, subd. (b).) Money is fungible, and we see little reason to erect an

artificial barrier under these facts between Daughter's lump sum payment and other funds

Mother must use for any refund. (Cf. Stephenson, supra, 358 P.3d at p. 100 [trial court

could order "reimbursement of the duplicative payments from funds that are discrete

from SSDI benefits"]; In re Marriage of Allen, supra, 386 P.3d at p. 1292 [same].)10

       In short, we agree with the trial court that section 4504, subdivision (b) requires

Father to receive credit against his already-paid child support obligation based on

Daughter's lump-sum benefit payment. This interpretation tracks the plain language of

the statute, the legislative history, and the perverse consequences that would follow a




10     As a practical matter, a request to credit Social Security derivative benefits against
a child support obligation will likely arise only where federal benefits are paid to a
representative payee who is also a custodial natural parent. In any event, we express no
view as to the treatment of benefits by a representative payee who is not a custodial
natural parent.

                                             20
contrary interpretation. To preclude Father from retroactive credit for Daughter's lump-

sum benefit would essentially force Father to overpay child support.11

       As previously noted (ante, fn. 2), the trial court did not order a refund or offset.

Instead, it simply established the method by which a credit should be applied:

          "[O]nce the derivative benefits were finally paid by the federal
          government, that was the amount that should have been attributed to
          the payment of support, . . . or credited first and then the voluntary
          amount be the overpayment, which would then be subject to being
          refunded.

          "So the way that this should be accounted is that the derivative
          benefits would be applied first in the amount of 596 per month,
          effective on June 1st, 2009, continuing forward. And if any
          voluntary payments were made, those should be [applied]
          secondarily in excess and serve as a credit."

We agree with the trial court that Daughter's derivative benefit had to be credited first

before crediting any child support payments Father made between June 2009 and June

2015.12 Any other construction would nullify our interpretation that section 4504,

subdivision (b) requires credit for Daughter's lump-sum benefit payment.

                                              C

       On our own motion, we modify the order to correct a clerical error. (People v.

Mitchell (2001) 26 Cal.4th 181, 186−187; Code Civ. Proc., § 43.) The trial court relied

on counsel's representation that Daughter's monthly benefit was constant at $596 per



11     Given our result, we need not reach Father's contention that interpreting section
4504, subdivision (b) to prohibit a credit would violate the Equal Protection Clause.

12    The court referred to these as "voluntary payments" but recognized that Father
made them to comply with his child support obligation and not fall into arrears.
                                             21
month commencing June 1, 2009. Actually, her benefit was adjusted in December 2011,

December 2012, December 2013, and December 2014 for cost of living increases and

only became $596 per month in 2015. In addition, Father's child support obligation was

not constant over those six years. It increased from $359 per month to $719 per month in

September 2012.

       As Father acknowledges on appeal, to the extent Daughter's derivative benefit

exceeded his child support obligation in a given month, that excess was a gratuity to the

child and may not be recovered. (See Paulhe, supra, 722 N.W.2d at p. 162, fn. 8;

Stephenson, supra, 358 P.3d at p. 89; Rathbone, supra, 124 A.3d at p. 482.) Therefore,

from June 2009 to September 2012, assuming there were no arrears, Father was entitled

to credit of only the $359 per month he paid, and the excess derivative benefit was a

gratuity to Daughter. From September 2012 to June 2015, Father's child support

obligation exceeded Daughter's benefit. During this period, assuming no arrears, Father

overpaid by an amount equivalent to Daughter's derivative benefit. Mother (as

Daughter's representative) received $568 per month in 2012, $577 per month in 2013,

$586 per month in 2014, and $596 per month in 2015.13

                                     DISPOSITION

       We modify the order dated December 20, 2016 to reflect a credit to Father of $395

per month from June 2009 to August 2012; $568 per month from September 2012 to



13     Out of the lump sum payment, $6,816 reflected payments for 2012; $6,924
reflected payments for 2013; and $7,032 reflected payments for 2014. Dividing each of
these by twelve (for the calendar year) produces the monthly benefit rates for those years.
                                            22
December 2012; $577 per month from January 2013 to December 2013; $586 per month

from January 2014 to December 2014; and $596 per month from January 2015 to June

2015. Credits based on Daughter's derivative benefits must be applied first against

Father's child support obligation. Any voluntary payments by Father between June 2009

and June 2015 must be applied second. As so modified, the order is affirmed. Father is

entitled to recover costs on appeal.




                                                                                DATO, J.

WE CONCUR:



HALLER, Acting P. J.



IRION, J.




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