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October 15, 2001

Respondent, William Pinkston, was ordered to pay child supportfor his dependent son, Andrew. Several years after the supportorder was entered, respondent was injured at work. Respondentsubsequently received social security disability benefits, andAndrew, as respondent's dependent, received social securitydisability dependency benefits. The Illinois Department of PublicAid (IDPA) appeals an order that credited Andrew's social securitydisability dependency benefits against the child support arrearagethat accrued before respondent was deemed disabled. We reverse andremand.

Marcie Pinkston and respondent were married in 1982, Andrewwas born in 1984, and Marcie and respondent's marriage wasdissolved in 1986. Marcie, who lived in Minnesota, was givencustody of Andrew, and respondent was ordered to pay child support. Respondent moved to Ogle County, and Marcie subsequently petitionedthe IDPA to collect Andrew's child support from respondent.

Although respondent was ordered to pay child support,respondent frequently failed to make the payments, and a largechild support arrearage accrued. In January 1993, respondent'schild support arrearage totaled $11,355. This arrearage amount waslater reduced in February 1996 when respondent was injured whileworking for his employer. Respondent filed a workmen'scompensation claim against his employer, and the claim subsequentlywas settled for $50,000. The IDPA placed a lien on thissettlement, and the trial court ordered that $10,000 of thesettlement was to be used to pay current and past-due childsupport.

As a result of the injury, respondent applied for socialsecurity disability benefits in 1999. The Social SecurityAdministration (Administration) found that respondent was disabledand awarded respondent benefits retroactive to March 1996. InSeptember 1999, the Administration paid respondent $26,000 in alump sum award. The IDPA sought to have a portion of the $26,000used to extinguish some of respondent's child support arrearage. However, respondent spent the $26,000 before the IDPA had theopportunity to place a lien on the money.

Because Andrew was respondent's dependent, the Administrationsent Andrew $5,392 in social security disability dependencybenefits. The majority of the $5,392 lump sum payment was creditedagainst child support payments that were owed from March 1996 toJuly 1999. The IDPA recognized that $206.24 of the $5,392 wascredited against respondent's child support arrearage that accruedbefore respondent was declared disabled, but the IDPA has chosennot to challenge that court order.

In February 2000, respondent's child support arrearage, whichaccrued before respondent was disabled, totaled $2,863.27. At thattime, Andrew received another lump sum payment from theAdministration. The lump sum payment was $1,908, and this paymentwas made to cover child support payments that were due during aperiod when respondent was deemed disabled. Nevertheless, becausethe $1,908 exceeded the amount of child support that was due atthat time, respondent sought to reduce the child support arrearagewith the lump sum payment. Relying on Department of Public Aid ex rel. McNichols v. McNichols, 243 Ill. App. 3d 119 (1993) (McNicholsI), the trial court found that it had the discretion, as a matterof equity, to reduce the child support arrearage with an amount ofthe $1,908 lump sum payment that exceeded the current child supportpayments. The court ordered a partial setoff of $990, reducing thechild support arrearage to $1,873.27.

The IDPA moved to reconsider, arguing that the lump sumpayment could only be applied to current child support payments. Thus, the $1,908 could not be used to set off the child supportarrearage of $2,863.27. At a hearing on the IDPA's motion toreconsider, respondent moved to have a portion of the $203 insocial security disability dependency benefits that Andrew was thenreceiving per month from the Administration credited againstrespondent's child support arrearage. The trial court denied theIDPA's motion to reconsider and granted respondent's motion to setoff the child support arrearage with a portion of the socialsecurity disability dependency benefits that Andrew was receivingevery month. The court order provided that respondent's arrearagepayments were increased to $100 per month and that $68 of the $100arrearage payment would come from the social security dependencypayment with the remainder being paid by respondent. This orderwas retroactive to March 27, 2000, which was the date respondentfiled his motion to redetermine his child support arrearage. Thistimely appeal followed.

Initially, we note that respondent has failed to file a briefwith this court. We will nevertheless address the issues the IDPAhas raised on appeal because the issues can be decided without theaid of respondent's brief. See First Capitol Mortgage Corp. v.Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976). The firstissue presented for our review is whether social securitydisability dependency benefits can be used to reduce respondent'schild support arrearage when the arrearage accrued beforerespondent was declared disabled. We will review this issue denovo because it presents purely a question of law. See In reParentage of R.M.F., 275 Ill. App. 3d 43, 49 (1995).

As noted previously, the trial court found that it had thediscretion to reduce the child support arrearage with Andrew'ssocial security disability dependency benefits. The trial courtrelied on McNichols I in reaching this conclusion. In McNichols I,the father's child support arrearage included an amount thataccrued while the father was not disabled, and thus not receivingsocial security, and an amount that accrued while the father wasdisabled, and thus was receiving social security. McNichols I, 243Ill. App. 3d at 120. The trial court found that it did not havethe discretion to offset the entire child support arrearage withsocial security disability dependency benefits that the dependentchild received. McNichols I, 243 Ill. App. 3d at 121. Therefore,the sole issue presented to the appellate court was whether thetrial court had the discretion to credit social security disabilitydependency benefits against the child support arrearage. McNicholsI, 243 Ill. App. 3d at 121. The appellate court concluded that thetrial court did have the discretion to reduce the child supportarrearage with the social security disability dependency benefitsthat the child received, and the court remanded the cause for thetrial court to exercise its discretion in deciding whether, andwhat amount of, the social security disability dependency benefitscould be used to offset the father's child support arrearage. McNichols I, 243 Ill. App. 3d at 123.

After McNichols I was decided, our supreme court resolved Inre Marriage of Henry, 156 Ill. 2d 541 (1993). In Henry, the trialcourt specifically found that the father's child support arrearagethat accrued after the father was deemed disabled would be reducedby the social security disability dependency benefits that thedependent child was receiving. Henry, 156 Ill. 2d at 543. Thetrial court then explicitly noted that by applying the socialsecurity disability dependency benefits to the arrearage in thismanner the father's child support payments were only in arrears forthose months predating the father's disability. Henry, 156 Ill. 2dat 543. The issue presented to our supreme court was whether thepayment of a social security disability dependency benefit to thechild and on behalf of the father satisfied the father's childsupport obligation. Henry, 156 Ill. 2d at 544. In framing thisissue, the supreme court again noted that the trial court foundthat the child's social security disability dependency benefitsonly satisfied the amount of the child support arrearage thataccrued while the child was receiving social security disabilitydependency benefits. Henry, 156 Ill. 2d at 545.

The supreme court affirmed the trial court and determined thata child's social security disability dependency benefits could beused to reduce the father's child support arrearage. Henry, 156Ill. 2d at 551. In reaching this conclusion, the court noted thatsocial security disability dependency benefits are not gratuitouschild support payments in and of themselves because the disabledparent actually earned the social security disability dependencybenefits though labor and wages. Henry, 156 Ill. 2d at 550-51. Thus, the source and purpose for child support payments and socialsecurity disability dependency benefits were the same, and therewas therefore no principal difference between the two methods ofpaying child support. Henry, 156 Ill. 2d at 550-51. The majorityin Henry did not indicate specifically whether a child's socialsecurity disability dependency benefits could be credited againstthe father's child support arrearage that accrued before the fatherwas declared disabled. However, Justice Heiple in a dissentconcluded that the majority in Henry determined that the fathershould receive credit for all the social security disabilitydependency benefits paid to the child, and this credit should beapplied against the entire child support arrearage. Henry, 156Ill. 2d at 552 (Heiple, J., dissenting).

After Henry was decided, the supreme court directed theappellate court in McNichols I to reconsider its opinion in lightof Henry. In a Supreme Court Rule 23 order (166 Ill. 2d R. 23),the appellate court cited to various passages of the Henry decisionand remanded the cause to the trial court with directions that thetrial court credit the child's social security disabilitydependency benefits against the father's child support obligation. Department of Public Aid ex rel. McNichols v. McNichols, Nos. 5--91--0454, 5--91--0496 cons. (1995) (unpublished order under SupremeCourt Rule 23) (McNichols II). The appellate court never indicatedwhether the trial court could apply the social security disabilitydependency benefits as a credit against the child support arrearagethat accrued before the father in McNichols started receivingsocial security benefits. Thus, the issue of whether socialsecurity disability dependency benefits can be credited against afather's child support arrearage that accrued before the father wasdeclared disabled remains unresolved in Illinois.

Nevertheless, several other states have addressed the issuepresented in this cause. For example, in In re Marriage of Cowan,279 Mont. 491, 494, 928 P.2d 214, 216 (1996), the father wasordered to pay child support beginning in 1982. The father failedto pay child support, and an arrearage accrued. The Administrationfound that the father was disabled beginning in November 1992, and,thus, the Administration awarded the father social securitydisability benefits retroactive to May 1993. Cowan, 279 Mont. at495, 928 P.2d at 217. Because the father was receiving disabilitypayments, the Administration began paying the father's dependentchildren social security disability dependency benefits. Thesebenefits were paid in a lump sum award and in monthly payments. The father argued that the lump sum and weekly payments in excessof the father's current child support obligation should be creditedagainst the father's child support arrearage.

The Montana Supreme Court concluded that the lump sum andweekly social security disability dependency benefits that were inexcess of the father's current child support obligation could notbe used to set off the child support arrearage that accrued beforethe father was disabled. Cowan, 279 Mont. at 503, 928 P.2d at 222. In reaching this conclusion, the supreme court relied on Montanaadministrative rules and other state court decisions that addressedthis issue. Cowan, 279 Mont. at 502-03, 928 P.2d at 221-22. Inreference to the decisions of other jurisdictions, the supremecourt noted that lump sum and monthly social security disabilitydependency benefits that exceed a father's monthly child supportobligation should not be credited against the child supportarrearage that accrued before the father became disabled because,among other things, any amount in excess of the father's childsupport obligation is a gratuity. Cowan, 279 Mont. at 502, 928P.2d at 221.

Several other states have reached this same conclusion. See,e.g., Weaks v. Weaks, 821 S.W.2d 503, 507 (Mo. 1991); Gress v.Gress, 257 Neb. 112, 120, 596 N.W.2d 8, 14-15 (1999); In reMarriage of Burger, 144 Wis. 2d 514, 527, 424 N.W.2d 691, 696-97(1988). We too adopt this view and conclude that a child's socialsecurity disability dependency benefits cannot be credited againsta father's child support arrearage when that arrearage accruedbefore the father was declared disabled. Because our determinationof this issue resolves the appeal, we will not address the secondissue that the IDPA has raised.

In reaching our conclusion, we note that in Illinois, as inCowan, an amount paid in excess of a current child supportobligation is a gratuity. See Childerson v. Hess, 198 Ill. App. 3d395, 399 (1990) (recognizing that an amount paid in excess of acurrent child support obligation is a gratuity and that the portionof social security disability dependency benefits that are paid tothe dependent child and that exceed the monthly child supportobligation is also a gratuity). This position is consistent withthe federal regulations for social security disability benefits,which recognize that social security disability dependency benefitsare provided to cover the beneficiary's current maintenanceexpenses, such as food, clothing, shelter, and medical care. 20C.F.R.