N. J. S. v. C. D. G. ( 2015 )


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  •                                                  RENDERED: AUGUST 20, 2015
    TO BE PUBLISHED
    oSonprriur (fond'             d
    2014-SC-000329-DGE
    2014-SC-000495-DGE
    C. D. G.
    DAT EC  ( o - 1 45 EAs.•1/4• CsreajrN4 ;b. c.
    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 " [alny 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.
    20
    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
    21