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In re Marriage of Allen

Court of Appeals of Arizona, Second Division

December 20, 2016

In re the Marriage of Cassandra Allen, Petitioner/Appellee, and Lynn Allen, Respondent/Appellant.

         Appeal from the Superior Court in Pinal County No. S1100DO201300816 The Honorable DeLana J. Fuller, Judge Pro Tempore

         REVERSED AND REMANDED

         COUNSEL

          The Powell Law Firm, PLLC, Tucson By Jay K. Powell Counsel for Petitioner/Appellee

          Susan M. Schauf, PLLC, Tucson By Susan M. Schauf Counsel for Respondent/Appellant

          Judge Staring authored the opinion of the Court, in which Presiding Judge Howard and Judge Espinosa concurred.

          OPINION

          STARING, Judge

         ¶1 Lynn Allen appeals the trial court's rulings denying him a credit for the receipt of dependent child social security disability benefits ("DSSD") by his former spouse, Cassandra Quinonez. The DSSD payments duplicated money Lynn had separately paid Cassandra for child support. For the reasons that follow, we reverse and remand for further proceedings.

         Factual and Procedural Background

         ¶2 We view the record in the light most favorable to upholding the trial court's decision. Milinovich v. Womack, 236 Ariz. 612, ¶ 7, 343 P.3d 924, 927 (App. 2015). The parties married in 2011, and had a child in April 2012. Lynn suffered a stroke in December 2012, and subsequently began receiving long term disability ("LTD") insurance benefits through an employer-sponsored plan as well as social security disability income. Cassandra filed for dissolution in May 2013. The court entered a support order in September, and modified it in January 2014. The court entered a consent decree in April 2014.

         ¶3 In January 2015, Lynn petitioned for modification of child support, seeking an order requiring Cassandra, as "the primary custodial parent, " to apply for DSSD for the child based on Lynn's disability, and for modification of Lynn's support obligation based on any change to Lynn's income as a result of DSSD.[1] In the petition, Lynn also asserted the availability of DSSD reduced the amount of Lynn's LTD benefits and had caused him to be deemed to have received overpayments that he was required to repay to the LTD insurer. He thus requested an order requiring Cassandra to reimburse the insurer for support Lynn paid using his LTD benefits.

         ¶4 Pursuant to the trial court's subsequent order, Cassandra applied for DSSD on behalf of the child, and received a retroactive DSSD payment of $14, 200 covering the period of May 2014 to April 2015. She also began receiving $1, 195 in DSSD for each month starting with May 2015. Cassandra argued Lynn's duplicate payment was a nonrefundable overpayment under the Arizona Child Support Guidelines, [2] and also that federal law[3] prohibited transferring DSSD to Lynn or the insurer. Lynn argued the Guidelines entitled him to credits for both DSSD and the support he paid using his own funds, and demanded an immediate transfer of the DSSD to permit him to repay the insurer.

         ¶5 The trial court concluded Cassandra had been "enriched with the overpayments" and that there was "a flaw in the policy, " but that it nevertheless had no authority to order Cassandra to transfer the lump sum payment to Lynn. The court denied Lynn judgment or any credit for the $14, 200 lump sum payment, but terminated child support nunc pro tunc to October 2015, and entered judgment against Cassandra for five months of duplicate payments Lynn had made after monthly DSSD commenced. Lynn timely appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(2).

         Discussion

         ¶6 On appeal, Lynn argues the trial court erred by: 1) not crediting him for the lump sum payment of derivative benefits pursuant to Guideline 26(B); 2) granting judgment for reimbursement of five monthly support overpayments when he had overpaid a total of six months; and 3) terminating rather than modifying his support obligation.

         Derivative Benefits and the ...


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