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Miller v. Miller (3/3/95), 890 P 2d 574
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, telephone (907)264-0607, fax (907)276-
THE SUPREME COURT OF THE STATE OF ALASKA
HARRIS C. (SONNY) MILLER, )
) Supreme Court No. S-5682
) Superior Court No.
v. ) 3KN-91-571 DR
JOYCE ELAINE MILLER, )
) O P I N I O N
______________________________) [No. 4172 - March 3, 1995]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
Charles K. Cranston, Judge.
Appearances: Allan Beiswenger,
Robinson, Beiswenger & Ehrhardt, Soldotna,
for Appellant. Joyce Elaine Miller, pro se,
Before: Moore, Chief Justice,
Rabinowitz, Matthews, and Compton, Justices,
and Bryner, Justice, pro tem.*
BRYNER, Justice, pro tem.
This appeal arises from divorce proceedings between
Harris (Sonny) and Joyce Miller and presents a question of first
impression for this court: whether a divorced parent who is
required to pay support to a child under Alaska Civil Rule 90.3
is entitled to child support credit for social security payments
the child receives on the parent's behalf. We hold that the
parent is entitled to receive such credit.
II. FACTS AND PROCEEDINGS
Joyce and Sonny Miller married in Anchorage, on
November 22, 1981. Approximately two and a half years later,
Joyce gave birth to a daughter, Holly. Joyce filed for divorce
on June 26, 1991. Trial was held before Superior Court Judge
Charles Cranston on November 9-10, 1992. Judge Cranston awarded
legal and primary physical custody of Holly to Joyce and ordered
Miller to pay monthly child support of $272.64 pursuant to Alaska
Civil Rule 90.3.1 This payment reflects a percentage of Sonny's
income for the years preceding the divorce.
At the time of trial Sonny was retired. Following the
parties' separation, but shortly before trial, Sonny reached the
age of 65 and became eligible for social security benefits under
the Social Security Act. See 42 U.S.C. 301 et. seq. Through
social security, he began receiving $958 per month in retirement
benefits. As Sonny's daughter, Holly also became eligible for
monthly social security payments of $371; Joyce began receiving
regular monthly payments from the Social Security Administration
for Holly. These payments are referred to as "children's
insurance benefits"; they are an integral part of Sonny's social
security retirement benefits, and Holly's entitlement to them
derives from Sonny's eligibility and past participation in the
social security program. 42 U.S.C. 402(d)(2).
Upon being ordered to pay monthly child support for
Holly, Sonny requested that Holly's $371 social security payments
be credited against his child support obligation. Judge Cranston
summarily denied Sonny's request. Sonny then filed this appeal,
contending that the superior court erred in refusing to credit
Holly's social security payments as child support.2
A. SONNY'S RIGHT TO CHILD SUPPORT CREDIT FOR SOCIAL
SECURITY BENEFITS PAID TO HOLLY
Sonny argues that his $272.64 child support order
should be offset by the social security payments that Holly
receives. Alternatively, he argues that if he is not entitled to
a dollar-for-dollar credit, the social security payments
constitute "good cause" for variance of the child support
obligation under Civil Rule 90.3.3 Whether Sonny is entitled to
credit for social security payments is a question of law that we
review de novo. See Langdon v. Champion, 745 P.2d 1371, 1372 n.2
(Alaska 1987) ("Under this standard it is our duty to adopt the
rule of law that is most persuasive in light of precedent,
reason, and policy.") (quoting Brooks v. Brooks, 733 P.2d 1044,
1055 (Alaska 1987)).
Although this court has not yet addressed the issue of
whether social security benefits received by a child should be
credited against a parent's child support obligation, "[t]he
overwhelming majority of states that have considered this issue
allow a credit for Social Security benefits paid to dependent
children." Pontbriand v. Pontbriand, 622 A.2d 482, 484 (R.I.
1993). See also, Bruce I. McDaniel, Annotation, Right to Credit
on Child Support Payments for Social Security or Other Government
Dependency Payments Made for Benefit of Child, 77 A.L.R. 3d 1315
5 (1977 & Supp. 1994).
Courts have been careful to point out that, unlike
welfare and other forms of public assistance, social security
benefits represent contributions that a worker has made
throughout the course of employment; in this sense, benefits
represent earnings in much the same way as do annuities paid by
an insurance policy:
The payments prescribed by them [the
Social Security Act] are not gratuities or
matters of grace; they are not public
assistance; they are not welfare payments.
On the contrary, the law created a
contributory insurance system, under which
what in effect constitute premiums are shared
by employees and employers. Consequently, in
spirit at least, if not strictly and
technically, the employee, who throughout his
working life has contributed part of the
premiums in the form of deductions from his
wages or salary, should be deemed to have a
vested right to the payments prescribed by
the statutory scheme, which in effect
comprises the terms of the insurance policy.
He has earned the benefits; he is not
receiving a gift.
Schmiedigen v. Celebreeze, 245 F. Supp. 825, 827 (D.D.C. 1965).
See also Andler v. Andler, 538 P.2d 649, 653 (Kan. 1975) ("The
purpose of social security is the same as that of an insurance
policy with a private carrier, wherein a father insures against
his possible future disability and loss of gainful employment by
providing for the fulfillment of his moral and legal obligations
to his children"). The majority view thus regards social
security benefits as earnings of the contributing parent and, for
this reason, allows benefits paid to a child on the parent's
behalf to be credited toward child support obligations.
Pontbriand, 622 A.2d at 484-85.
We find the majority view persuasive. The primary
purpose of Civil Rule 90.3 "is to ensure that child support
orders are adequate to meet the needs of children, subject to the
ability of the parents to pay." Alaska R. Civ. P. 90.3
Commentary I(B). See also Doyle v. Doyle, 815 P.2d 366, 373
(Alaska 1991) (stating that the determination of whether to grant
a "good cause"variance from the Rule 90.3 formula "must focus
first and foremost on the needs of the children"). Social
security benefits payable to a child are geared toward fulfilling
the same objective. Although the benefits are payable directly
to the child rather than through the contributing parent, the
child's entitlement to payments derives from the parent, and the
payments themselves represent earnings from the parent's past
contributions. "In theory, at least, the actual source of the
payments is of no concern to the party having custody as long as
they are in fact made." Davis v. Davis, 449 A.2d 947, 948 (Vt.
1982). See also Children & Youth Services v. Chorgo, 491 A.2d
1374, 1377 (Pa. 1985) ("[S]ince the child will still receive the
same amount of support which the court has decided he should
have, it does not matter to that party that the obligor is given
Although most of the relevant cases from other states
have addressed the issue in the context of social security
disability benefits rather than retirement benefits -- the type
of benefits at issue here -- there appears to be no theoretical
basis for distinguishing between the two types of payment. The
handful of cases considering retirement benefits have declined to
find any distinction between disability and retirement benefits,
and they have adhered to the majority view. See Childerson v.
Hess, 555 N.E.2d 1070, 1073 (Ill. App. 1990); Lopez v. Lopez, 609
P.2d 579, 581 (Az. 1980); Cash v. Cash, 353 S.W.2d 348 (Ark.
1962). We see no reason to treat retirement benefits any
differently than disability benefits.4
Sonny contributed to social security throughout his
career and earned the benefits that Holly receives. We conclude
that Sonny must be credited for the social security payments made
to Holly on his behalf.5
B. WHETHER SOCIAL SECURITY BENEFITS PAYABLE TO HOLLY
SHOULD BE TREATED AS INCOME TO SONNY
Our decision that the social security benefits Holly
receives through Sonny must be credited toward Sonny's child
support obligation requires us to consider the subsidiary issue
of whether such payments should be included as income in
calculating Sonny's child support obligation. Civil Rule 90.3
Commentary III(A) defines "income"as "total income from all
sources. This phrase should be interpreted broadly to include
benefits which would have been available for support if the
family had remained intact." Id. (citation omitted).
In deciding that the social security benefits Holly
receives as Sonny's dependent child should be credited as child
support payments by Sonny, we reasoned that those benefits are
essentially earnings derived by Sonny from his past social
security contributions. By parallel reasoning, the benefits
should be counted as income to Sonny.6 Given the broad
definition of income under Civil Rule 90.3, and in order to avoid
granting a windfall to Sonny, we find it necessary to include
social security benefits payable to Holly on his behalf as income
for purposes of the Rule 90.3 calculation of income.7
We REVERSE the trial court's decision and hold that
Sonny is entitled to child support credit for the social security
payments that Holly receives.8
*Sitting by assignment made under article IV, section 16 of
the Alaska Constitution.
1 The court initially ordered Sonny to pay child support
in the amount of $503.96 based on his 1991 income. Upon
reconsideration, the court found that its initial calculation of
Sonny's income was overstated due to capital gains realized by
Sonny in 1991. The court then reduced Sonny's child support
obligation to $272.64.
2 Sonny argues, alternatively, that he should not have
been required to pay child support at all because he is not
Holly's biological father. However, Sonny did not dispute his
parental responsibility for Holly before or during the divorce
proceedings. He sought to raise the issue for the first time in
a motion for reconsideration. Sonny's motion -- filed twenty
days after distribution of the court's memorandum of decision in
the divorce case, was untimely. See Alaska R. Civ. P. 77(k).
Moreover, the issue was improperly raised in the motion for
reconsideration, since it had never previously been raised. Id.
Finally, in asserting this argument below, Sonny made no showing
of good cause for his failure to raise the issue in a timely
manner. The superior court did not address the issue. Under the
circumstances, we hold that Sonny's failure to properly raise
this issue below precludes his attempt to raise it on appeal.
See Gates v. City of Tenakee Springs, 822 P.2d 455, 460 (Alaska
1991) (stating that claims raised for the first time on appeal
will not be considered); Lumbermen's Mut. Casualty Co. v.
Continental Casualty Co., 387 P.2d 104, 109 (Alaska 1963) (court
will not consider matters "that were not made issues in the trial
court, by either the pleadings or the pre-trial order or that
were not tried before the court").
3 Civil Rule 90.3(c)(1) provides, "The court may vary the
child support award as calculated under the other provisions of
this rule for good cause upon proof by clear and convincing
evidence that manifest injustice would result if the support
award were not varied."
4 Some jurisdictions apparently allow the trial judge
discretion to apply the credit on a case-by-case basis. See
Matter of Estate of Patterson v. Quaintance, 805 P.2d 401, 405
(Az. 1991); Chase v. Chase, 444 P.2d 145, 149 (Wa. 1968). We
find it preferable to treat benefits payable to the child as
child support payments. See Chorgo, 491 A.2d at 1378; Davis, 449
A.2d at 948-949. To the extent that adjustments to the
contributing parent's support payments may be warranted, such
adjustments can be made by the superior court on a case-by-case
basis under Civil Rule 90.3. See infra note 5.
5 In reaching this conclusion we do not mean to suggest
that the availability of benefits to the child should necessarily
be irrelevant to the determination of the amount of child support
payments a parent should be required to make. As we hold in the
next section of this opinion, benefits payable to a child must be
included as income of the contributing parent for purposes of
establishing the appropriate amount of child support under Civil
Rule 90.3. Moreover, Rule 90.3 allows variance from the formula
prescribed therein upon proof, by clear and convincing evidence,
of manifest injustice. The availability of social security
benefits may be considered as a factor in determining whether
variance from the Rule 90.3 formula is necessary to avoid
manifest injustice. In the present case, Joyce did not attempt
to prove, and the court did not purport to find, that Holly would
suffer manifest injustice as a result of receiving child support
payments limited to the amount prescribed by Rule 90.3.
A related issue is whether a child support modification
hearing should be required when the child of a non-custodial
spouse becomes eligible for social security benefits subsequent
to a child support award. The issue is not before us in this
case, and we decline to decide it. We note, however, that a
minority of jurisdictions require a support modification hearing.
See Hinckley v. Hinckley, 812 P.2d 907, 911-12 (Wyo. 1991);
Matter of Estate of Patterson, 805 P.2d at 405; Arnoldt v.
Arnoldt, 554 N.Y.S.2d 396, 398 (1990); Chase, 444 P.2d at 149. A
majority of jurisdictions allow the non-custodial parent an
automatic credit for social security payments made to a child on
the non-custodial parent's behalf. See Weaks v. Weaks, 821
S.W.2d 503, 506 (Mo. 1991).
6 Since we have deemed the benefit payments to Holly to
be the equivalent of child support payments, excluding those
benefits from Sonny's income would seem no more defensible than
deducting ordinary child support payments from Sonny's income.
7 Increasing the income that the superior court relied on
in establishing Sonny's current payments by the amount of the
benefits payable to Holly, and applying the Rule 90.3 formula to
the resulting total, yields a new child support figure of $346.84
It might be argued that the social security benefits
payable to Holly should, at most, offset all but $50 of this
amount. Civil Rule 90.3(c)(1)(B) contemplates that a non-
custodial parent should pay "a minimum child support amount of no
less than $50 per month." This provision might be interpreted to
require an out-of-pocket payment of at least $50 by Sonny. Such
an interpretation, however, would cast the rule in a distinctly
penal light and would be inconsistent with its primary purpose of
ensuring that the needs of children are adequately met. We
decline to construe Rule 90.3 as precluding Sonny's social
security benefits from offsetting the full amount of his support
8 Our order of reversal does not preclude Joyce from
moving for recalculation of appropriate child support based on a
showing of "good cause"for varying the amount established under
Rule 90.3. See supra note 5.