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Marriage of Durbin12/19/1991
y recovery does indeed improve a victim's economic condition for child support purposes will not always be easy or obvious. There are times, of course, when the victim has suffered actual economic impairment as a result of the tort-feasor's negligence, and the award is merely repaying the victim for the actual economic impairment. If so, the award may truly make the victim economically whole again and nothing more; no increase in economic circumstances results. These questions of fact must be carefully considered by the trial court in order to do justice to both the non-custodial parent and to the children."
Sommer, 323 N.W.2d at 147.
I dissent from that part of the majority opinion which concludes that there need be a modification of the original decree before Social Security benefits can be credited toward a parent's child support obligations. The Social Security benefits paid to Ed's children in this case were a direct result of his disability and inability to work. They are clearly a substitute for his loss of earning power and his obligation to support his children. There is no reason apparent to me why a disabled parent should be required to incur the additional expense of attorney fees to go through the formality of modifying a decree simply to reflect what in reality is already the situation.
I do not agree that ยง 40-4-208, MCA, requires the majority's conclusion. That section only pertains to modification of child support payments. In the case of social security payments, the parent is simply substituting one source of payment for another.
Furthermore, the result achieved by the majority is particularly harsh where the Court concedes that after modification of the decree it would be appropriate to credit social security payments to child support obligations, but disallows a credit for those same payments for a nearly three year period of time prior to the motion to modify. I believe that the majority's opinion exalts form over substance and creates an unnecessary hardship for this totally disabled parent.
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