*1 349 Martha S. DAVIS v. of CHILD SUPPORT ENFORCEMENT
OFFICE 273 99-1422 S.W.3d Arkansas delivered Opinion May *2 Hilburn,
Tom L. Chancellor; Bohanan, Bohanan, & Dawn and Barrett Deacon, & by: James
BA., D. B. Marshall by: Jr., appellant. Bowlin,for Linda O. appellee. R. Martha S. Davis Appellant peti- Ju Smith, ce ce .. review a court st st i i decision appeals LAVENSKI a Randolf order. The
affirming County chancellor $70.00 *3 ordered Davis to month in child her to ex- pay per support husband for their two children. sole Davis’s source of income is a Income check monthly Security from thе Supplemental (“SSI”) federal the in amount of $494. Davis that government argues federal both law and Arkansas law expressly impliedly preempts that a might on her SSI benefits. We impose child-support obligation reverse.
Facts Davis and her ex-husband Davis were mar- Randy (“Randy”) 31, ried on 1981. The Davises had two January children the during course of 1988, their In March marriage. sued for divorce in Randy Court. Davis Randolph County answered and Chancery counter- claimed for divorce. reached a couple ultimately property- settlement in settlement, the matter. agreement In the the property that would have the parties agreed of two Randy children. custody also that They Davis would not child agreed pay because support she was court enterеd unemployed. the divorce chancery 10, decree on April later,
Nine on the Office years April Child Support (“OCSE”) Enforcement intervened the matter. In the interim his Randy OCSE to child assigned rights pursue support from Davis. In set its OCSE petition support, requested that Davis current and secure and maintain health pay past support, children, insurance for the be and for one-half of the responsible medical costs not insurance. the by Davis answered on paid petition 8, 1998, May and she that was disabled due alleged to paranoid $494 her income source as identified sole and only schizophrenia benefits. month in SSI per held a brief on hearing Tom Hilburn Chancellor June about use of her the Davis the for OCSE
1998. Counsel questioned her check that $400 check. Davis testified monthly SSI monthly rent, sister, lives, she groceries, with whom is her paid for her $94 is used for medication the remaining while cigarettes, nor other evidence No other witnesses were called mental illness. submitted. conclusion, Davis’s attorney
At
sought
hearing’s
child-
the issue of
received
brief
SSI’savailability
permission
brief,
In her
Davis noted the
awards.
government’s
out
that Con-
She
creating
program.
pointed
purposes
level of subsistence
minimum
intended SSI
gress
provide
also
that federal law
income to
Davis
argued
prohibits
recipients.
on,
execution
or other legal process against
garnishment, levy,
benefits.
noted that Arkansas does not
Davis
specifically require
benefits,
and that
other states
such
of SSI
most
taking
prohibit
OCSE
use of SSI benefits
cases.
responded
25, 1997,
Court,
that this
in a
curiam dated
arguing
per
September
come out of
form
ordered that
could
“any
child-support payments
that
to an individual. OCSE
because SSI
argued
payment”
Davis, it
as a
and should
“income” due
“form
qualifies
payment”
Davis
be
argued
OCSE
subject
child-support withholding.
*4
food, shelter, and
as
but
uses her
for
luxuries such
money
cigarettes,
failed
that it is
has
her children. OCSE further
supрort
argued
“execute,
attach,
SSI,
not
Davis’s
trying
levy,
garnish”
noting
42
do not
income
that
allow
407(a)
1383(d)(1)
U.S.C. §§
benefits, but
is
to set
on SSI
that it merely trying
withholding
from the “income” Davis receives.
support payments
4, 1998,
The
his order
chancellor filed
on August
requiring
Davis to
in
that
$70
month
support,
noting
pay
per
specifically
of
a
The court found
Davis smokes
one
cigarettes day.
pack
perhaps
reasonable,
that
and that
be
$70
$36
was
should
year
paid
per
further
that
administrative fees. The court
found
Davis should pay
28,
fees.
filed her notice of
on
$35.75
Davis
August
filing
appeal
353
17, 1999, the court of
On November
affirmed the
appeals
of
the court
chancellor’s Order
Support. Specifically,
appeals
form
determined
income
“any
payment, periodic
otherwise,
individual,
due
an
source”
this
regardless
citing
order, which
court’s
curiam
is now Arkansas
per
Administrative Order Number 10. The court of
thus rea
appeals
soned that SSI is income
subject
child-support payments.
benefits,
SSI to veteran’s
see Belue v.
opinion compared
disability
Belue,
81,
38 Ark.
for and a need a level of subsistence income in support parent’s the child’sfavor. the court of Additionally, determined that appeals federal law does not state law in preempt domestic-relations matters taken from federal benefits. including Davis peti case, tioned this court for review of this and the filed parties briefs for our consideration. supplemental
Standard Review
review,
a
Upon
petition
we consider the case as
it were
filed in
though
v.
originally
court. Myrick
339
Myrick,
1,
Ark.
2
Baker,
S.W.3d 60 (1999); Minnesota
&
v.
Mining Mfg.
337
94,
Ark.
FederalPreemption review, that federal Davis law In her argues petition law which Arkansas might and any preempts expressly impliedly SSI benefits. Davis on Davis’s obligation child-support impose benefits a chancellor discretion over SSI that allowing further argues law, and the federal undermines in child-support proceedings in the undercuts needed national uniformity decision chancellor’s turn, OCSE, that federal obligations. argues law of child-support issue, state law this and that Congress’s does not on law preempt Furthermore, and unclear. OCSE on this is ambiguous intent issue to be between SSI benefits “gar- makes distinction allowing again that the out those nished” ordering parent pay that federal law benefits without actual “garnishment,” reasoning review, orders. we hold that federal such does prohibit Upon exclu- does court ordered law state prohibit child-support payments from SSI benefits. sively rule,
As a the federal leaves domestic relations government Rose, u within exclusive of the states. See Rose matters province However, 619 Rose 481 U.S. (1987). in some“rare” occasions does preemption apply. acknowledged when has Congress justified “positively preemption Specifically, Rose, be enactment” that state law direct preempted. required 572 U.S. at v. 439 U.S. 481 625 (citing Hisquierdo Hisquierdo, court noted that “before a state law Rose (1979)). governing overridden, “must will be it do damage’ domestic relations ‘major Rose, federal interests.” U.S. at to ‘clear substantial’ 625 Yazell, at v. 439 U.S. United States (citing Hisquierdo, quoting U.S. 352 (1966)). thеre is direct enactment exclusive to SSI no Although orders, it there is clear from state exempting specific, law state court with authority generally respect limiting and Social Security (“SSD”) Congress Disability payments. from Social benefits legal protected Security process expressly states, 407 and Section 407 1383(d)(1). U.S.C. § § section amendment of Assignment; § future (a) any person right pаyment be or at law or in assignable, shall not transferable subchapter moneys paid payable rights existing and none equity, *6 execution, be shall to attach- subject levy, under this subchapter ment, or other or to legal operation garnishment, process, or law. any insolvency bankruptcy law, before, on, other enacted (b) No or after provision 20, 1983, limit, be construеd or April may otherwise supersede, of this to the modify section extent that it provisions except so reference to express does this section. by
(c) this section shall be construed to Nothing prohibit taxes from benefit under any this if such withholding subchapter, is done to a made in withholding pursuant accordance with request section of the 3402(p)(l) Internal Revenue Code of 1986 [§26 U.S.C.A. by entitled to such benefit or such person 3402] person’s representative payee.
This section SSI and SSD benefits transfer or protects against assign- ment law or and states are equity they subject “execution, attachment, or garnishment, other levy, legalprocess.” This would include state added.). with- (Emphasis child-support However, orders as the OCSE concedes. holding sincе the enact- ment of has carved Congress out limited for exception § There, in 2 U.S.C. 659. con- child-support purposes Congress § sented to income and withholding, garnishment, similar proceed- enforcement ings from alimony obligations based on “remuneration moneys payable employment.” from That statute states: by Consent the United States income withholding, §
garnishment, similar for enfоrcement proceedings of child support and alimony obligations
(a) Consent support enforcement Notwithstanding other any provision of law sec- (including tion 407 of this title and section 5301 of Title effective 38), January moneys entitlementto (the which based remuneration upon from, employment)due payable the United by, States or the District subdivision, of Columbia (including any agenсy, or instru- individual, mentality thereof) any members of the including States, Armed of the Forces United be shall in like subject, manner and to the same extent as if the United States or District of Columbia were a private person, to withholding accordance with State law enacted pursuant (a)(1) to subsections and (b) of section 666 of this title and regulations of the Secretary under such
subsectiоns, a State by other legal brought, and to process under a State administering plan approved agency program to enforce the legal obligation an individual obligee, part or alimony. (Emphasis provide of the individual *7 added.) to 659 only the created U.S.C. applies
Notably,
exception
§
“the
to which is based
remuneration for
entitlement
upon
moneys
bene-
could not
federal SSI
This
apply
excеption
employment.”
not remuneration for
or
SSI benefits are
any past
present
fits.
have been
or other
No
payments
employment.
premiums, deposits,
welfare for the
them. Put
SSI is federal
for
qualify
simply,
paid
the
citizens.
nation’s
poorest
the
of SSI benefits in
explained
purpose
There,
the court stated:
Schweiker the Act Security In amended Social Congress October Income (SSI) the federal (Act) Security create Supplemental Stat. 42 U.S.C. January effective 1974. 86 program, § 1381 et This was intended assist those who program seq. “[t]o blindness, or S. age, disability,” Rep. cannot because No. work 92-1230, guaranteed a Federal minimum (1972), by “setfting] 4p. id., blind, at 12. income and disabled aged, persons,” level allowance, provides a subsistence program SSI blind, standards, to the Nation’s and disabled. needy aged, Included the of “disabled” under the are category program within activity by all those “unable to substantial engage any gainful mental reason determinable or any medically physical impair- in death has ment can be to result or which lasted expected which less or can to last for a continuous of not than periоd be expected Act, (A) twelve of the 42 U.S.C. (a) (3) months.” § § 1382c(a)(3)(A).
SSI, SSD, that an file for like benefits requires applicant “substan that he or she is disabled from performing prove However, or sustained work for SSI and tial pay. gainful activity” SSD, “insurance” differ Under the seeks SSD substantially. applicant based withheld from his benefits To payments paychecks. upon at the must have into the least five рrogram qualify, paid applicant out of the ten or out SSI years, twenty forty quarters. prior however, never either never “premium” paid recipients, paid words, In into the for SSD. other enough system qualify benefits an receives are based on how much he recipient into the but instead much how he she needs system, paid maintain “a Federal minimum income level for guarantеed aged, blind, Schweiker, Davis, and disabled persons.” supra. Currently, $494.00 that amount is set at monthly. distinct, SSD and SSI can interrelate. This
Although illustrates the intent SSI. For interplay Congressional underlying instance, if a disabled worker draws $300 month SSD based per on their their income is $194 below employment history, monthly the Federal minimum income level for blind and guaranteed aged, disabled Based the amount that the pеrsons. upon into person paid worked, the Social he or Security system during she years they also be entitled to an additional him $194 raise or her to may “Federal minimum income level” for disabled guaranteed person. Maintenance of this minimum income level is thus fundamental *8 SSI, of As stated in the SSI. purpose regulations governing The basic the underlying security income purpose suрplemental to assure minimum level of income for program who people over, are 65 or or are who blind or disabled and who do age not have sufficient income and resources to maintain a standard of at the established Federal minimum living income level. sup- plemental security income program the financial assistance replaces blind, for the programs aged, and disabled in the 50 States and the District of Columbia for which were made the grants under Social Security Act. are Payments financed from the funds general of the United States Treasury. C.F.R.. 416.110. § Given its we find that SSI purposes, state subjecting payments court orders would do to a clear child-support “major damage” and Therefore, substantial federal interest.”1 we hоld that the sovereign created immunity 659 does not exception by SSI bene apply § See, fits. Services, Tennessee Human ex e.g., Department rel. v. Young of 802 S.W.2d Young, (Tenn. 1990).
In Order the Administrative Court Number we defined “income” as: 1 We note that the of a for the of their minor responsibility parent provide support ” children is as “a the court has moral stated, can do supreme imperative. Certainly, parents by
choice what the law the living cannot command. In case disabled on parents exclusively income, subsistence with rare there is little choice. exception, otherwise, due to or form of periodic means any payment,
Income source, salaries, individual, com- wages, including regardless an bonuses, missions, disability, payments worker’s compensation, and interest less retirement program, a pension pursuant for: deductions proper tax; and state income
1. Federal Medicare, and Security (FICA), 2. for Social Withholding retirement; railroad children, and dependant Medical insurance paid
3. other Presently support dependents paid order.
This definition is broad intentionally encompass designed of minor income sources for widest range pоtential “income” The trial court and court interpreted children. appellate include from the federal 10 to SSI payments Order government. however, hold, comes within
We although it is income for subject definition of child-support purposes, has made no sovereign immunity state court Congress jurisdiction. Hence, as federal benefits such SSI. for non-remunerative exception “execution, attachment, from those remain free levy, gar benefits nishment, thus of the other We join majority legal process.” that Arkansas courts states that have addressed issue hold income fed based from cannot order payments upon eral SSI benefits.2 disability *9 and remanded.
Reversed
Arnold, C.J., dissenting. I Arnold, Chief Justice, dissenting. disagree “Dub”
W.H. are not income for with in that SSI the majority holding payments gross Thirty-еight SSI from in a calculation of states benefits inclusion exempt Georgia, Nebraska, California, Iowa, Those states are: income for child support purposes. Colorado, Connecticut, Island, Alabama, Alaska, Arizona, Mexico, Wisconsin, New Rhode Michigan, Mon Maine, Missouri, Hawaii, Kansas, Louisiana, Delaware, Indiana, Maryland, Dakota, Ohio, New North North York, Cаrolina, New tana, New Jersey, Hampshire, Virginia, Washington, Carolina, Tennessee, Utah, Vermont, South Oklahoma, Pennsylvania, Wyoming. Virginia, West under the Court’s Administra- of child purposes support the 10. Section 2 of order income tive Order No. defines as means of follows: “Income form other- any payment, periodic individual, source, wise, due to an including regardless wages, of commissions, salaries, bonuses, Workers Compensation, disability, to a retirement interest payments pursuant pension program, . . . .” less reductions proper [Emphasis added.] in this that the The facts case receives support appellant $494.00 month in SSI benefits. I that this is a acknowledge per However, that the sum of is this meager money receiving. appellant does not excusе her from her her obligation two chil- support children, love, dren. She birth to these and she has a gave duty nurture, and them. The trial this support judge recognized duty into the limited took consideration funds support the setting amount of child Based the child proper support. upon support charts, $490.00 one month $130.00 should receiving per pay per month for of two children. The trial reduced support judge sup- to $70.00 month. The facts are that the port per undisputed smokes one appellant approximately pack The cigarettes per day. cost of habit her alone would set smoking provide support the trial Is this too much to ask? judge. has income; carved out an majority exception defining decision, food, benefits are With this has exempt. appellant shelter, and continues the clothing, pleasure smoking pack — while each her two children cigarettes day, receive zero nothing
— not even a Who will them? If court felt that penny. support $70.00 month was too much for her to not per why pay, seventy cents,at the least? A mother and father should very pay something. holds that SSI benefits are majority frоm use as exempt and, so, reasons that' it support doing is following issue; of the states that have addressed this majority then cite they that states SSI benefits. thirty-eight This does not exempt impress me. shouldn’t Arkansas follow other eleven states Why that are children, mothers and rightly fathers to their requiring support of the source of regardless their income? conscience would never аllow me to
My who say parent has income from source should their children. any This and no excuse is wrong, circumstance. I acceptable
would, therefore, the trial and the Court Appeals. affirm judge reasons, I dissent. these For respectfully NORRIS, and as B. Individually Jeannie Guardian,
Mother,
Frien
and Next
Natural
d
Thomas, a Minor v.
of Skye
COMPANY
FIRE & CASUALTY
STATE FARM