Mаrgaret Esther Hanthorn appeals from a July 21, 1988, order of the district court for Buffalo County allowing appellee Ellis Oliver Hanthorn to credit Social Security disability benefits paid for the benefit of his dependent children toward his court-ordered child support judgment.
The record shows that on November 20,1981, appellant filed a petition for dissolution of her marriage to appellee. On September 2, 1982, after an uncontested hearing, a divorce decree was entered by the district court for Buffalo County. The decree approved the property settlement agreement of the parties, granted appellant custody of the parties’ two children, and ordered appellee to pay $100 monthly for the support of each child.
At the time of the divorce decree, appellee had been unemployed since September 1981. Some months after appellant filed her dissolution petition, but before the final decree was entered, appellee applied for Social Security disability benefits on the grounds that he had been diagnosed as a manic-depressive and was totally disabled from employment.
During the divorce proceedings, appellee testified that he had applied for Social Security disability benefits, but that he did not know if he would bе found eligible and that if he were found eligible, he did not know to what extent his dependent children might receive benefits.
After entry of the decree, appellee made child support payments to the court through February 1983. In December 1982, appellee wаs notified that his claim had been approved and that both he and his dependents would receive Social Security benefits, commencing January 3, 1983. In January and February, each of the children received from Social *227 Security an amount less than $100 becausе part of the auxiliary benefits at that time were paid directly to the appellant mother. Beginning in March 1983, all benefits were paid for the children’s benefit. At all times after February 1983, the Social Security benefits paid for the children were in excess of the $100-pеr-month support which was ordered for each child in the divorce decree.
Appellee himself made no support payments for any months after February 1983. He testified that he stopped paying “[b]ecause we were notified by North Platte office оf Social Security to write the Clerk of District Court and we would cease because she would receive Social Security payments.”
During February 1983, the attorney who had been retained by appellee at the time sought to have both parties sign a stipulatiоn that payments received by the children from Social Security would discharge appellee’s child support obligation. Appellant refused to sign the stipulation. Her attorney stated in the letter rejecting the stipulation that appellant was having “a vеry difficult time getting along” financially and should be entitled to both disability payments and child support. No further action was taken by either party for the next 5 years.
Since the divorce, appellee has lived on his mother’s farm near Indianola. His sole sources of inсome consist of the disability payments he receives from Social Security and interest from some investments. The investments apparently were amounts appellee received pursuant to the property settlement agreement at the time of thе dissolution.
Appellee testified that sometime in late 1987 or early 1988, he was informed by appellant that he owed thousands of dollars in child support arrearages. Appellee testified that soon thereafter, the parties went to the office of the clerk of the district court for Buffalo County in Kearney and found that the records did show that arrearages had been accumulating since 1983. In May 1988, appellee filed his “Application for Credit for Social Security Payments on Child Support.” After a hearing at which each party adduced evidence, the court granted the application.
Appellant’s assignments of error can be summarized as follows: The district court erred (1) in awarding the credit, *228 especially considering that appellee was disabled and benefits were contemplated at the time of the divorce decree, and (2) in failing to find that appellant was prejudiced by the appellee’s more-than-5-year delay in seeking a credit and that therefore laches should have barred the application for credit.
The standard of review of this court in child support cases is de novo on the record, and the decision of the trial court will be affirmed in the absence of an abuse of discretion.
Sanchez
v.
Sanchez,
This court has considered the applicability оf Social Security payments made for the benefit of dependent children to a father’s child support obligations. In
Schulze
v.
Jensen,
In
Lainson
v.
Lainson,
On appeal, this court held that that action of the trial court was within the discretion of the trial court and that Schulze did not mandate that the disability payments be offset. We stated:
In Schulze the father was injured after child support amounts had been set by the court. The court there decided that “in the сontext of this case” the payments were a substitute for the father’s support obligation. Id. at 257,214 N.W.2d at 594 . Here, Roger was injured prior to the court’s determination of support obligation. The court was fully cognizant of Roger’s disability and of the Social Security payments being made on the child’s behalf. Knowing this, it ordered support in addition to the benefit payments. In so doing the trial court was considering the overall situation of both parents and the child.
Lainson, supra
at 175-76,
The fact situation in this case is different from those in both Schulze and Lainson. Unlike the situation in Schulze, the father in this case was disabled before the decree, and the court was cognizant that his children might receive benefits. Unlike in Lainson, no benefits had yet been received, and there was no certainty that they would be received or to what extent they might benefit the children.
Other jurisdictions have considered the question of crediting Social Security payments on a parent’s court-ordered child support obligation. The majority rule, with which our
Schulze
decision comports, is that credit for such payments should be given, unless the allowance of such credit, in the particular case, would be inequitable. See,
Board
v.
Board,
In
Andler v. Andler,
Although the father’s disability and the likelihood of disability benefits were known at the time of the decree, the Kansas Supreme Court held that in equity the father was entitled to credit. Thе court analogized the Social Security system to a system of private insurance in which the worker pays into the system with the understanding that the system will continue to fulfill the worker’s moral and legal obligations to his dependents should he become unable to fulfill them due to disаbility.
We find the reasoning of Schulze and Andler applicable to the facts in this case. The father is unable to work because of his disability. Social Security benefits must necessarily serve as a substitute for the father’s earning power. This is not a case such as Lainson where the trial judge was fully cognizant of the amоunt of benefits being received at the time of the modification and exercised discretion under the circumstances to order additional support.
We hold, therefore, that Social Security payments made to a parent’s child on account of the parent’s disability should be considered as credits toward the parent’s court-ordered support obligation, in the absence of circumstances making the allowance of such a credit inequitable.
It should be noted that the relief granted appellеe is an equitable credit for the disability benefits received by the children, which is by nature different from a retroactive modification of a vested and accrued obligation. See, Griffin v. Avery, supra; Board v. Board, supra; Perteet v. Sumner, supra; Mask v. Mask, supra.
Lastly, we must consider the argument that the application for credit must be refused under the doctrine of laches. The
*231
defense of laches is not favored in Nebraska. It will be sustained only if a litigant has been guilty of inexcusable neglect in enforcing a right to the prejudice of his adversary.
In re Estate of Widger,
We have held that laches must be founded upon the inequity оf permitting a claim to be enforced — an inequity which arises out of some change in the condition or relation of the parties.
Scheibel v. Scheibel,
There may havе been differing expectations of the parties, but appellant was not unfairly prejudiced despite her belief that she was entitled to both disability benefits and direct support payments. Had she attempted to seek a modification of the support amounts to receive an amount greater than that of the disability payments, such a modification might not have been possible considering appellee’s limited income. In any event, appellant could have attempted to secure more monеy for the children by instituting an action to collect at any time during a period of over 5 years. If additional funds were needed for the day-to-day expenses of the children, appellant should have made an effort to collect such needed funds.
Appеllee’s tardiness in applying for credit is not condoned. This is especially true in light of the fact that appellant refused to sign the proposed stipulation prepared by appellee’s attorney. Each party apparently chose to gаmble on the ultimate outcome resulting from the situation. On such conduct do many cases reach this court. Although appellee’s tardiness is by no means commendable, neither is appellant’s. The facts in this case do not establish laches as a bar to appellee’s motion for credit.
The court’s decree, in a handwritten addendum, states, “ ‘see docket entry - $200 per mo. commencing 4-3-83 &
*232
through 7-3-88 plus accrued interest.’ ” The Social Security payments have been made monthly and operate as a satisfaction of the court-ordered monthly child support payments. Insofar as the record submitted to this court is concerned, there is no accrued interest. The Social Security payments satisfy appellee’s court-ordered child support only on a month-to-month basis, however. Social Security payment in a particular month may not be carried over to satisfy court-ordered support amounts owing in future months. See
Andler v. Andler,
The order of the district court is affirmed.
Affirmed.