Parenting Agreement Outlives NonCustodial Father in Montana Child Support Case

In a recent Montana Supreme Court case, the decedent's estate for the noncustodial father was ordered to continue making child support payments according to the parenting agreement. The estate believed that the Social Security death benefits paid following the parent's death should be applied to offset the deceased father's child support obligation. Parenting Plan Enforced Against the Decedent's Estate. Everett Hicks' marriage to Melissa Thompson ended in divorce. As part of the settlement of their divorce, the couple entered into a parenting plan, part of which addressed matters of child support for the couple's two minor children. Amended in 2005, the parenting plan provided that Hicks would pay $550 per month in support for each child ($1,100 total for both children). Unless a child emancipated, the support was to continue until each child either graduated from high school or turned 19, whichever came first. The parenting agreement was part of a separation agreement covering other settled issues and was incorporated into the Court's order. Provisions in the Parenting Agreement. The couple's agreement included provisions for child support should Hick's die before the children were either out of high school or emancipated. More specifically, the agreement stated that: "In the event of the death… Father's support obligation continues through that time in the same manner as if he had survived, and Father shall make provision for payment of such child support either by means of provision in Father's estate for a trust for both children or through life insurance…" To make sure both parties were absolutely clear on the noncustodial parent's continuing duty to pay support after his death, the agreement reaffirmed their intent that "Father's estate will pay the sum of $550 per child during the entire time that Father's child support obligation would have continued if he had survived." By its own terms, this provision in the parenting agreement was made a part of the Hicks' estate plan as a part of his Last Will and Testament. Thus, the parties' agreement put the continuing obligation of child support on the decedent's estate. During his lifetime, Hicks' did not create a trust or purchase life insurance for the benefit of his children. Following his death, Social Security death benefits were paid to Thompson in the amount of $252 for each minor child ($504 total). The estate dutifully made support payments halfway through 2008, but then stopped. The children's mother promptly filed a claim against the estate for the unpaid child support. At trial in the District Court, Hicks' estate agreed that it was obligated to pay support, but disagreed as to the amount. The estate argued that it should receive a credit for the death benefit amount paid by Social Security directly to Thompson. The trial court held for the mother and ordered arrears with interest to be paid by the estate. The Hicks estate appealed. Did the Parties Agree that Social Security Death Benefits Would Offset Child Support? In answer to the question: "Did the parties' agreement state that Social Security death benefits would offset child support? No, it didn't — there was no such express provision in the parties' parenting agreement. The Montana Supreme Court affirmed the trial court in its decision. The state's high court examined the estate's arguments, ultimately rejecting both. The estate first argued that Social Security death benefits should be credited to it (to reduce the estate's support obligation) because Social Security disability is credited toward a living parent's support obligation. The Court declined to answer this question at all, however, stating that it was not relevant to a determination of the case at hand. Instead, the Court looked only to the four-corners of the parenting agreement. The estate argued that the trial court erred in its interpretation of the couple's parenting plan. Rejecting the estate's second argument, the Supreme Court looked to the plain language of the agreement and found no reference to Social Security benefits. The agreement was unambiguous and explicit as to the amount of support "without regard to any other source of payment to the minor children." Even though the agreement referred to life insurance and a trust for the benefit of the children, that did not mean that any source of payments (including Social Security death benefits) should go toward offsetting the estate's support obligation. The Court noted that, had the noncustodial father "actually purchased life insurance or created a trust, payment to the minor children would still have originated from the Estate," and Social Security death benefits would still have been additional. To learn more about parenting plans for Arizona families, read our earlier post on Child Custody and the Well-Prepare Parenting Plan. We can help you determine what you face financially and legally regarding child support. Our friendly and knowledgeable family law attorneys have the experience to guide you through your divorce and the child custody process. For more information about your legal rights and options, about parenting plans and separation agreements, contact the Law Offices of Scott David Stewart today and arrange to meet with a member of our family law team. Resource: In re Estate of Hicks (Mont.Sup.Ct. April 19, 2011)

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