Angela Brooke Metz by Jan Metz, Next Friend, and Jan Metz, individually, Plaintiffs/Respondents, v. Richard Deichmann, Defendant/Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Angela Brooke Metz by Jan Metz, Next Friend, and Jan Metz, individually, Plaintiffs/Respondents, v. Richard Deichmann, Defendant/Appellant. Case Number: 74001 Handdown Date: 12/15/1998 Appeal From: Circuit Court of St. Louis County, Hon. Martin Schiff, Jr. Counsel for Appellant: Linda L. Roediger Counsel for Respondent: Angela Metz and Jan Metz, Pro Se Opinion Summary: Richard Deichmann (Father) appeals from the judgment entered in favor of Jan Metz (Mother) denying Father's motion to modify child support. Father contends the trial court erred in denying his motion to modify child support because his social security disability benefits should be credited toward the child support amount. REVERSED AND REMANDED. Division Five holds: The case of Weaks v. Weaks, 821 S.W.2d 503 (Mo. banc 1991), is applicable in that social security disability benefits can be credited toward a child support obligation. The trial court erroneously declared the law in siding with the dissent in Weaks. The case is remanded for further proceedings to consider all relevant factors to determine whether to modify child support including a possible credit for social security disability benefits. Citation: Opinion Author: Robert G. Dowd, Jr., Chief Judge Opinion Vote: REVERSED AND REMANDED. Karohl, J., and Crist, Sr.J., concur. Opinion: Richard Deichmann (Father) appeals from the judgment entered in favor of Jan Metz (Mother) denying Father's motion to modify child support. Father contends the trial court erred in denying his motion to modify child support

because his social security disability benefits should be credited toward the child support amount. We reverse and remand. On January 9, 1987, Mother and Father entered into a Consent Agreement awarding care and custody of their minor child to Mother and required Father to pay the sum of $23 per week as child support. Subsequently, Father suffered head injuries and was declared totally disabled. Father is unable to work and receives social security disability as his sole income. Mother, on behalf of the minor child, receives social security benefits in the amount of $488 a month derived through Father's account. Father filed a motion to modify child support based on substantial and continuing changed circumstances in accordance with Section 452.370, RSMo 1994. Father argued his social security disability benefits should be credited toward his child support obligation. Thus, the excess in social security benefits Mother receives on behalf of the minor child would negate his child support obligation. The trial court ruled against Father's motion and entered judgment for Mother. This appeal follows. We will affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Hopkins v. Hopkins, 859 S.W.2d 205, 206 (Mo. App. E.D. 1993); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Modification of child support depends upon certain findings. Section 452.370, RSMo 1994, provides that: "... [T]he provisions of any decree respecting maintenance or support may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable." The statute clearly requires a court to consider all financial resources of both parties in determining whether a substantial change in circumstance has occurred. See Section 452.370.1. Father contends his disability is a substantial and continuing change in circumstance and therefore is entitled to a modification of child support. Father argues the social security disability benefits can be credited toward his child support obligation. Father cites Weaks v. Weaks, 821 S.W.2d 503 (Mo. banc 1991), as controlling. We agree. In Weaks, the Supreme Court of Missouri held that a parent charged with a support obligation is entitled to a credit toward that obligation for social security disability benefits derived through that parent's account. Id. at 505-506. The Court found that the purpose of social security disability payments is to replace income lost due to the recipient's inability to work. Id. at 506. The Court held it is inequitable to withhold a credit against the child support obligation. Id. The benefits Mother received on behalf of the minor child were a substitute for Father's income and therefore can be credited to satisfy his support obligation. The trial court sided with the dissent in Weaks and erroneously declared the

law. Therefore, the trial court's order denying Father's motion to modify child support is reversed. However, the receipt of social security benefits is only one circumstance to consider in deciding whether to modify the child support. Weaks, 821 S.W.2d at 506. The case is remanded for further proceedings consistent with this opinion. Reversed and remanded. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.