Michael O. Freeman, Hennepin County Attorney, Catherine T. Fridgen, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for appellant)

Mary S. Strong, n/k/a Mary S. Nowlin, 1000 LeCuyer Drive, Stillwater, MN 55082 (attorney pro se)

Gary A. Weissman, 701 Fourth Avenue South, Suite 500, Minneapolis, MN 55415 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Parker, Judge, and Huspeni, Judge.

Respondent Lucian Strong moved the district court for relief after he received notice that Hennepin County would garnish his Retirement Security Disability Income (RSDI) to collect a judgment of child support arrearages. The district court, affirming a referee's order, ordered Hennepin County to stop all collection proceedings and further ordered a credit toward Strong's child support arrearages of $72 per month for as long as his children receive dependent benefits due to Strong's receipt of RSDI. Hennepin County appeals, contending that the district court's order retroactively modified Strong's support obligation in violation of Minn. Stat. § 518.64, subd. 2(c), and was barred by res judicata. We reverse and remand.

A modification of support * * * may be made retroactive only with respect to any period during which the petitioning party has pending a motion for modification but only from the date of service of notice of the motion.

Minn. Stat. § 518.64, subd. 2(c) (1996). Under this statute, it is reversible error for a trial court to order forgiveness of child support arrearages that accrued before service of a motion to modify support.[1] Allen v. Allen, 509 N.W.2d 593, 597 (Minn. App. 1993).

The children receive $621 in dependent benefits based on Strong's receipt of RSDI. The district court reasoned that, because guidelines support for the children based on Strong's disability income of $1,199 per month would be $360 per month, the $261 difference between the guidelines amount and what the children actually receive was a "windfall" to the custodial parent. The district court ordered that $72 of this windfall (20 percent of the $360 guidelines support) be credited toward Strong's arrearages.

The district court erred by treating the children's income as a windfall to be credited to Strong.

[A] child's receipt of social security benefits from the account of a parent charged with support does not constitute payments from that parent.

Haynes v. Haynes, 343 N.W.2d 679, 682 (Minn. App. 1984). The payments are the child's income and are considered only when determining the child's needs under the guidelines. Id. at 683.

The credit ordered by the district court was, further, precluded by res judicata. Strong previously moved to modify support, and the district court ordered Strong's support arrearages reduced by the amount of the lump-sum benefit his children received after he became eligible for RSDI.[2] That order also stated:

Any arrears not satisfied by the lump sum received by [the children] remain [Strong's] responsibility and the judgments that represent unsatisfied arrearages should not be vacated.

* * * *

This order does not preclude [obligee] from bringing a subsequent motion on any claim she might have for residual child support arrearages.

That order was not appealed and became res judicata on the issue of modification of child support arrearages. See Bledsoe v. Bledsoe, 344 N.W.2d 892, 894-95 (Minn. App. 1984) (earlier order expressly denying motion to forgive arrearages became res judicata as to second motion for same relief). The district court's order crediting Strong based on the children's income had the effect of retroactively reducing Strong's remaining arrearages, contrary to the district court's earlier order and contrary to Minn. Stat. § 518.64, subd. 2(c).

We deny Strong's request for attorney fees for this appeal. Strong's reliance on Becker Co. Human Servs. v. Peppel, 493 N.W.2d 573 (Minn. App. 1992), is misplaced. Our holding that SSI payments are not income for the purpose of determining a parent's child support obligation does not relieve Strong from his obligation to pay arrearages from his RSDI income. Payments "based upon remuneration for employment," which include RSDI payments, are subject to withholding to meet child support obligations. Id. at 575; see also 42 U.S.C. §§ 415(b)(1), 423(a)(2) (1996) (RSDI benefits tied to "average indexed monthly earnings").

Reversed and remanded.

[ ]¹ The statute recognizes certain exceptions to this rule for physical or mental disability or fraud, circumstances not present here.

[ ]² The district court's earlier order also suspended Strong's ongoing support obligation for as long as his children receive dependent benefits as a result of Strong's receipt of RSDI. The suspension of ongoing support and the setoff for the children's lump-sum payment reflect the district court's equitable consideration of Strong's circumstances.