Post by Jim on Jun 12, 2009 16:15:47 GMT -5
THE LOWER COURT ERRED IN ORDERING DEFENDANT
TO PAY CHILD SUPPORT AS FEDERAL LAW, 42
U.S.C. § 407 PROVIDES FOR THE INALIENABILITY
OF SUPPLEMENTAL SECURITY INCOME AND THUS
FORBIDS ANY STATE FROM ORDERING CHILD
SUPPORT TO BE PAID WHERE SSI IS THE
RECIPIENT'S ONLY INCOME.
We begin our analysis with a discussion addressing the
nature of defendant's SSI benefit and the differences between
"means-tested" and "non-means-tested" government benefits
relevant to the establishment, modification and enforcement of a
child support obligation. SSI, which is a means-tested benefit,
7
differs substantially from Social Security Disability (SSD),
which is a non-means-tested benefit program.
A government benefit is "means-tested" if eligibility for
the benefit, or its amount, is determined on the basis of the
income or resources of the recipient. Riggs v. Riggs, 622 N.W.
2d 861, 866-67 (Neb. 2001); Forbes v. Forbes, 610 N.E. 2d 885,
887-88 (Ind. Ct. App. 1993). See Pressler, Current N.J. Court
Rules, Appendix IX-B to Rule 5:6A, "Use Of The Child Support
Guidelines," "Types of Income Excluded from Gross Income" (2004)
(excluding means-tested income, including SSI benefits, from the
definition of "gross income"); 8 C.F.R. § 213a.1 (defining a
means-tested benefit as a public benefit "funded in whole or in
part by funds provided by the Federal Government that the
Federal agency administering the Federal funds has determined to
be a Federal means-tested public benefit under the Personal
Responsibility and Work Opportunities Reconciliation Act of
1996, Public Law 104-193"). See also Hartman v. Hartman, 622
N.W. 2d 871, 877 (Neb. 2001) (noting that "[t]he Social Security
Administration has stated that as to the programs it
administers, for purposes of the federal Personal Responsibility
and Work Reconciliation Act of 1996, only 'supplemental security
income benefits' are '"Federal means-tested public benefits."'"
(quoting 62 Fed. Reg. 45, 284 (August 26, 1997)). SSI and other
8
means-tested government benefits are financed from general
revenues in order to provide disabled indigents with minimally
adequate incomes, whereas SSD benefits are financed from payroll
deductions.
SSD payments represent money which an employee has earned
during his or her employment and also that which his or her
employer has paid for the employee's benefit into a common trust
fund under the Social Security Act. See 42 U.S.C.A. § 405. SSD
"payments are for the purpose of replacing income lost because
of the employee's inability to work upon becoming disabled."
Lightel v. Meyers, 791 So. 2d 955, 959 (Ala. Ct. App. 2001).
Stated another way, SSD payments are a substitute for earned
income and are thereby non-means-tested benefits.
Unlike SSD payments, SSI benefits are not a substitute for
lost income due to disability; rather, they are a supplement to
the recipient's income. The purpose of SSI benefits is to
assure that the income of a recipient is maintained at a level
viewed by Congress as the minimum necessary for subsistence.
Schweiker v. Wilson, 450 U.S. 221, 223, 101 S. Ct. 1074, 1077,
67 L. Ed. 2d 186, 191 (1981); Davis v. Office of Child Support
Enforcement, 20 S.W. 3d 273, 277 (Ark. 2000); In re Marriage of
Benson, 495 N.W. 2d 777, 781 (Iowa Ct. App. 1992).
9
The common qualifying requirements for both SSI and SSD is
an applicant's disability, consisting of "a medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months[,]" and
that the recipient is unable to engage in "substantial gainful
activity," 20 C.F.R. § 416.905(a), defined as being able to do
significant and productive physical or mental duties, done or
intended, for pay or profit. 20 C.F.R. § 416.910. Generally,
if a person can earn more than $700 per month, he or she can
engage in "substantial gainful activity." Angela F. Epps, To
Pay Or Not To Pay, That Is The Question: Should SSI Recipients
Be Exempt From Child Support Obligations?, 34 Rutgers L.J. 63,
66 (Fall 2002); 20 C.F.R. § 416.974(b). SSI eligibility further
requires that the applicant have no more than $2,000 in
financial resources. 20 C.F.R. § 416.1205(c).
Thereby, SSI benefits are payable only when the disabled
person's income and resources are insufficient to provide for
that individual's basic needs. Benson, supra, 495 N.W. 2d at
781. Moreover, the SSI benefit will be reduced by one-third if
the recipient is living in another person's residence and is
receiving both food and shelter. 20 C.F.R. § 416.1131(a).
SSD is payable when the applicant meets the disability
10
requirement, plus additional criteria in the form of minimum
lifetime earnings with contributions into the Social Security
Retirement System. See 20 C.F.R. § 404.315(a)(1). The minor
dependents of an SSD recipient also receive a monthly benefit,
payable to the custodial parent(s). See 20 C.F.R. §§ 404.330 to
.331, .350. A disabled person ineligible for SSD is eligible
for SSI payments under the applicable means test. However, the
SSI program does not provide a benefit for the dependents of the
SSI recipient, unless the dependents themselves independently
meet the SSI eligibility criteria.
These differences between the SSD and SSI programs are
critical to our analysis because non-means-tested benefits, such
as SSD, may be utilized as income when calculating child support
in accordance with the child support guidelines and payments
made to the dependents of the SSD recipient reduce the amount of
the basic child support obligation to be apportioned between the
parties. See Pressler, supra, Appendix IX-B to Rule 5:6A, "Use
of the Child Support Guidelines," "Line Instructions for the
Sole-Parenting Worksheet," "Lines 1 through 5 - Determining
Income," "Sources of [Gross] Income," subparagraph m. (including
SSD benefits within the definition of gross income); Pressler,
supra, Appendix IX-A to Rule 5:6A, "Considerations In Use Of
Child Support Guidelines," ¶10c, "Government Benefits Paid to or
11
for Children" (requiring the subtraction of the non-means-tested
dependent government benefit received by the child from the
basic child support award prior to allocation of that amount
between the parents). See also Herd v. Herd, 307 N.J. Super.
501, 503-04 (App. Div. 1998) (requiring trial courts to consider
SSD payments received by children, attributable to a parent's
Social Security disability status, when calculating a child
support obligation).
Benefits received through the SSI program are exempt from
attachment, garnishment, levy, execution or any other legal
process. 42 U.S.C.A. § 407(a); 20 C.F.R. § 581.104.
Specifically, SSI cannot be garnished or attached for child
support or alimony. 42 U.S.C.A. §659(a). Conversely, Congress
has waived the sovereign immunity created by 42 U.S.C.A.
§ 407(a) with respect to SSD payments and permits enforcement of
child support or alimony obligations through execution against
SSD payments. See 42 U.S.C.A. § 659(a).
The principle of child support is engrained into our common
law, statutory, and rule-based jurisprudence. One of the
fundamental concepts in American society is that parents are
expected to support their children until they are emancipated,
regardless of whether the children live with one, both, or
neither parent. Dunbar v. Dunbar, 190 U.S. 340, 351, 23 S. Ct.
12
757, 761, 47 L. Ed. 1084 (1903); Cumberland County Bd. of Soc.
Servs. v. W.J.P., 333 N.J. Super. 362, 365 (App. Div. 2000)
(noting that "t common law, parents had an absolute duty to
support their children"). In Monmouth County Div. of Soc.
Servs. v. G.D.M., 308 N.J. Super. 83, 87 (Ch. Div. 1997), the
court summarized the evolution of this fundamental requirement,
as follows:
"The duty of parents to provide for the
maintenance of their children is a principle
of natural law." Greenspan v. Slate, 12
N.J. 426, 430 (1953), citing 1 W.
Blackstone, Commentaries on the Laws of
England (1765), 435-36.
(They left out the second part of the equation in Monmouth County v.
G.D.M that the duty of support fits is a RECIPROCAL of the constitutional
right to beget and raise (e.g., care, custody and nurture of) children: extrapolating the
argument, NO CUSTODY; NO SUPPORT!).:
Citing from Monmouth County v. G.D.M., 705 A.2d 408, 308 N.J. Super. 83, 88 (Chancery Div. 1997):
Some courts have gone so far as to ground the parental duty of support in our federal Constitution. See, e.g., Pamela P. v. Frank S., 443 N.Y.S.2d 343, 110 Misc.2d 978 (Fam.Ct.1981). That court stated, "Clearly, the duty of support fits into the legal framework as a RECIPROCAL of the fundamental Constitutional RIGHT to beget and raise children"....
In keeping with this, New Jersey Courts
have long held that a parent is bound to
provide a child with necessities. See
Tomkins v. Tomkins, 11 N.J. Eq. 512, 517-18
(Ch. 1858); Kopack v. Polzer, 5 N.J. Super.
114, 117 (App. Div. 1949), aff'd, 4 N.J.
327, 328 (1950); Greenspan, supra, at 432;
Grotsky v. Grotsky, 58 N.J. 354, 356-57
(1971); Ionno v. Ionno, 148 N.J. Super. 259,
261 (App. Div. 1977); Lynn v. Lynn, 165 N.J.
Super. 328, 342-43 (App. Div.), certif.
denied, 81 N.J. 52 (1979). Today, "s a
general rule, a parent is obliged to
contribute to the basic support needs of an
unemancipated child to the extent of the
parent's financial ability irrespective of
the quality of the relationship between
them." Martinetti v. Hickman, 261 N.J.
Super. 508, 513 (App. Div. 1993). Thus, the
hopeful common law rule noted in Greenspan,
above, thereby has become a realistic
equitable principle as well.
[Footnotes omitted.]
13
The issue of child support has been extensively regulated
by the federal government. Professor Epps has concisely
summarized that regulation and its relationship to public
assistance programs as follows:
In 1975 Congress created the Child Support
Enforcement Program ("CSP"). The goals of
this program were to increase payment and
collection of child support. In 1996,
efforts to accomplish these goals
intensified with the passage of the Personal
Responsibility and Work Opportunities
Reconciliation Act ("PRWORA"). PRWORA
created a new program known as Temporary
Assistance for Needy Families ("TANF") to
replace Aid to Families with Dependent
Children ("AFDC"). TANF is funded by a
block grant given to the state. It is not
an entitlement program as AFDC had been. It
provides a monthly benefit to families but
also requires various work related
activities. The goal of TANF is to get
families off public assistance and to help
them to become self-sufficient. Eligibility
lasts a maximum of five years.
The number of families on welfare was
viewed as a direct consequence of the noncustodial
parent's failure to pay child
support. Therefore, PRWORA included
amendments to the CSP geared toward
increasing the effectiveness of child
support collection efforts. To be eligible
for TANF, a recipient must assist the state
in efforts to collect support from the noncustodial
parent. . . . The state must
comply with the requirements [of TANF] or
risk losing the federal block grant that
supports TANF and the federal funding used
to assist in child support collection
14
efforts. There is also a financial
incentive for states related to the amount
of support they collect.
Each state is required to have a plan
for child support collection. The plan must
include strong measures to collect child
support from the non-custodial parent. . . .
* * * *
The state plan must also provide for
the establishment of child support
guidelines that "[t]ake into consideration
all earnings and income of the non-custodial
parent."
[Epps, supra, 34 Rutgers L.J. at 72-74
(quoting 45 C.F.R. § 302.56(c)(1); footnotes
omitted).]
We recognize the basic obligation of parents to support
their children is deeply rooted in our jurisprudence, as well as
the intent of Congress to require parents to support their
children in order to lessen the need for public assistance.
However, it is undeniable that American society is also
confronted with the problem of disabled parents who are unable
to support themselves, much less their children. See Rachael K.
House, note, Awarding Child Support Against The Impoverished
Parent: Straying From Statutory Guidelines And Using SSI In
Setting The Amount, 83 Ky. L.J. 681, 681-82 (1994-95).
A state court confronted with the issue of whether SSI
benefits are to be considered as income when calculating a
15
parent's child support obligation faces the dilemma of
reconciling the federal mandate of PRWORA to maximize child
support establishment and collection based upon consideration of
all sources of income, with the clear federal intent of Congress
to provide a recipient of SSI benefits a minimum level of income
necessary for subsistence. Schweiker, supra, 450 U.S. at 223,
101 S.Ct. at 1077, 67 L. Ed. 2d at 191.
Here, the uncontroverted evidence supports the conclusion
that defendant is totally disabled with a schizophrenic disorder
and indisputably indigent, surviving solely on SSI benefits
directed at providing him with the legislatively-established
minimum level of subsistence. The intent of the child-support
framework to ensure that parents support their children has no
application to those parents whose sole source of income is SSI,
and where such parents have no ability to generate any
additional income. To require SSI benefits to be diverted under
such circumstances for child-support purposes would undercut the
purpose of Congress in enacting the SSI program and hardly
satisfies the intent of PRWORA to remove and keep individuals
off the welfare rolls in any meaningful way.3 Moreover, implicit
in the SSI program is the intention that these payments are for
3 Here, the child support obligation established by the December
20, 2002 order equates to approximately $9.23 per week.
16
the benefit of the recipient, rather than the recipient and his
or her dependents. See Tennessee Dep't of Human Servs. ex rel.
Young v. Young, 802 S.W. 2d 594, 598 (Tenn. 1990) (noting that
any reduction of SSI benefits would necessarily reduce the
recipient's income below the Congressional-guaranteed minimum
level for subsistence). If Congress had intended that SSI
benefits be applied toward the support of a recipient's
dependents, it could have so stated or provided a dependent
benefit as it did with the SSD program.
The United States Supreme Court has not considered whether
a state is precluded from using SSI benefits as income in child
support calculations. Epps, supra, 34 Rutgers L.J. at 91.
However, in addressing that issue, the overwhelming majority of
courts in other jurisdictions have ruled that a disabled parent
cannot be ordered to pay child support when the sole parental
income consists of his or her SSI benefits, and that parent is
unable to generate any additional income. See, e.g., Davis,
supra, 20 S.W. 3d at 278 (ruling that federal law prohibits
state court-ordered child support payments exclusively from SSI
benefits, and noting that thirty-eight states have exempted SSI
benefits from inclusion in a calculation of gross income for
child support purposes); Marrocco v. Giardino, 767 A. 2d 720,
728-29 (Conn. 2001) (noting that both SSI and state
17
supplementation benefits are awarded on the basis of need and
are designed to protect the individual recipients from poverty
and that requiring child support to be paid therefrom would
reduce the recipient's income below that necessary to protect
him or her from poverty in contravention to the legislative
policy that drives these programs); Lee v. Lee, 859 So. 2d 408,
409-10 (Miss. Ct. App. 2003) (recognizing that a child-support
award cannot be entered where the sole income of a parent is SSI
benefits, but affirming order assessing child support against
the SSI recipient where the trial court found recipient had
ability to generate other income); Rose on behalf of Clancy v.
Moody, 629 N.E. 2d 378, 381 (N.Y. 1993) (requiring a parent,
whose sole source of income is means-tested income, to pay a
minimum amount of child support "is not only unjust and
inappropriate, it is a legal pretense"), cert. denied sub nom.,
Attorney General of New York v. Moody, 511 U.S. 1084, 114 S. Ct.
1837, 128 L. Ed. 2d 464 (1994); (c.f., Hurd v. Hurd, 757 N.Y.S.
2d 170, 171 (N.Y. App. Div. 2003) (ruling that child support can
be ordered against an SSI recipient if the hearing examiner
concludes that the recipient has the capacity to generate
additional income)); Reyes v. Gonzales, 22 S.W. 3d 516, 519-20
(Tex. Ct. App. 2000) (father's SSI benefits cannot be considered
in calculation of father's net resources for purposes of
18
determining father's child support obligation), cert. denied,
533 U.S. 929, 121 S. Ct. 2550, 150 L. Ed. 2d 717 (2001). See
also Davie v. Office of Child Support Enforcement, 76 S.W. 3d
873, 875 (Ark. 2002); Cox v. Cox, 654 N.E. 2d 275, 277 (Ind. Ct.
App. 1995); Department of Public Aid ex rel. Lozada v. Rivera,
755 N.E. 2d 548, 550 (Ill. App. Ct. 2001); Becker County Human
Servs. v. Peppel, 493 N.W. 2d 573, 576 (Minn. Ct. App. 1992);;
Young, supra, 802 S.W. 2d at 597; Langlois v. Langlois, 441 N.W.
2d 286, 287-88 (Wis. Ct. App. 1989).
A minority of jurisdictions have interpreted the antigarnishment
provisions contained in 42 U.S.C.A. § 407(a) as only
precluding use of the federal government as a collection agency
for child support obligations with respect to SSI benefits, but
not as preventing an award of child support against a parent
whose only source of support is his SSI benefits. See, e.g.,
Griggs v. Griggs, 435 So. 2d 103, 105 (Ala. Civ. Ct. App. 1983)
(concluding that SSI benefits were aimed to protect the
recipient's family as well as the recipient and were therefore
available for consideration in the calculation of child
support); Commonwealth ex rel. Morris v. Morris, 984 S.W. 2d
840, 841-42 (Ky. 1999) (in a four-to-three decision, holding
that state statute permitting courts to include SSI benefits
when calculating child support obligations was not preempted by
19
42 U.S.C.A. § 407(a)); Whitmore v. Kenney, 626 A. 2d 1180, 1184-
85 (Pa. Super. Ct. 1993) (finding that 42 U.S.C.A. § 407(a) only
precludes actions to compel the federal government to pay child
support obligations from future SSI benefits and not from
considering SSI benefits when calculating child support), appeal
denied, 641 A. 2d 587 (Pa. 1994).
The Pennsylvania court's reasoning in Whitmore, supra, 626
A. 2d at 1182-1185, warrants discussion. There, in concluding
that SSI benefits are available for consideration in the
establishment of a child support obligation, the court relied
upon 42 U.S.C.A. § 659(a), a section of the Child Support
Enforcement Act of 1975, 42 U.S.C.A. §§ 651 through 662, and the
Supreme Court's opinion in Rose v. Rose, 481 U.S. 619, 107 S.
Ct. 2029, 95 L. Ed. 2d 599 (1987).
In Whitmore, supra, the court concluded that 42 U.S.C.A.
§ 659(a) limits the application of 42 U.S.C.A. § 407(a) to
garnishment applications to compel the federal government to pay
child support obligations out of future SSI benefit payments.
626 A. 2d 1184-85. 42 U.S.C.A. § 659(a), entitled "Consent to
support enforcement," provides as follows:
Notwithstanding any other provision of law
(including section 407 of this title and
section 5301 of Title 38), effective January
1, 1975, moneys (the entitlement to which is
based upon remuneration for employment) due
20
from, or payable by, the United States or
the District of Columbia (including any
agency, subdivision, or instrumentality
thereof) to any individual, including
members of the Armed Forces of the United
States, shall be subject, in like manner and
to the same extent as if the United States
or the District of Columbia were a private
person, to withholding in accordance with
State law enacted pursuant to subsections
(a)(1) and (b) of section 666 of this title
and regulations of the Secretary under such
subsections, and to any other legal process
brought, by a State agency administering a
program under a State plan approved under
this part or by an individual obligee, to
enforce the legal obligation of the
individual to provide child support or
alimony.
In Lozada, supra, 755 N.E. 2d at 551, the Illinois Court of
Appeals analyzed this reasoning of Whitmore and concluded it was
misplaced, stating that "t is settled that section 659(a)
does not directly expose SSI benefits, whether paid or unpaid,
to 'legal process,' as the entitlement to SSI benefits is not
based on remuneration for employment." Ibid. (citing to Davis,
supra, 20 S.W. 3d at 276-77, and Young, supra, 802 S.W. 2d at
596-97). We agree. Clearly, 42 U.S.C.A. § 659(a) exempts nonmeans-
tested federal benefits, "the entitlement to which is
based upon remuneration for employment," from execution or
garnishment, and retains the sovereign immunity established by
42 U.S.C.A. § 407(a) as to SSI benefits.
21
In Rose, supra, the Supreme Court ruled that a Tennessee
statute that permitted the payment of child support from
veteran's disability benefits was not preempted by federal law.
481 U.S. at 636, 107 S. Ct. at 2039, 95 L. Ed. 2d at 614. The
Whitmore court's analogous reliance upon Rose with respect to
SSI benefits, however, is misplaced
because veterans' disability benefits are
more similar to [SSD] benefits than SSI
benefits. Both [SSD] benefits and veterans'
benefits are received for time on the job.
SSI benefits, by contrast, are awarded
solely on the basis of need. Additionally,
veterans' benefits are intended to "provide
reasonable and adequate compensation for
disabled veterans and their families," Rose,
[supra,] 481 U.S. at 630, 107 S. Ct. at
2036, [95 L. Ed. 2d at 610], while SSI
benefits are awarded to protect only the
recipient.
[Becker, supra, 493 N.W. 2d at 576; see also
Lozada, supra, 755 N.E. 2d at 553.]
We are persuaded by the reasoning of those jurisdictions
that have held that SSI benefits cannot be included in the
child-support calculus. 42 U.S.C.A. § 407(a) and the
Congressional intent in creating the program preclude the
inclusion of such benefits in establishing, modifying or
collecting child support when the sole income of the parent
consists of those SSI benefits and the parent otherwise has no
ability to generate additional income. To permit our courts to
22
base child support payments solely upon a parent's receipt of
SSI benefits would be contrary to the clear intent of the SSI
program.
TO PAY CHILD SUPPORT AS FEDERAL LAW, 42
U.S.C. § 407 PROVIDES FOR THE INALIENABILITY
OF SUPPLEMENTAL SECURITY INCOME AND THUS
FORBIDS ANY STATE FROM ORDERING CHILD
SUPPORT TO BE PAID WHERE SSI IS THE
RECIPIENT'S ONLY INCOME.
We begin our analysis with a discussion addressing the
nature of defendant's SSI benefit and the differences between
"means-tested" and "non-means-tested" government benefits
relevant to the establishment, modification and enforcement of a
child support obligation. SSI, which is a means-tested benefit,
7
differs substantially from Social Security Disability (SSD),
which is a non-means-tested benefit program.
A government benefit is "means-tested" if eligibility for
the benefit, or its amount, is determined on the basis of the
income or resources of the recipient. Riggs v. Riggs, 622 N.W.
2d 861, 866-67 (Neb. 2001); Forbes v. Forbes, 610 N.E. 2d 885,
887-88 (Ind. Ct. App. 1993). See Pressler, Current N.J. Court
Rules, Appendix IX-B to Rule 5:6A, "Use Of The Child Support
Guidelines," "Types of Income Excluded from Gross Income" (2004)
(excluding means-tested income, including SSI benefits, from the
definition of "gross income"); 8 C.F.R. § 213a.1 (defining a
means-tested benefit as a public benefit "funded in whole or in
part by funds provided by the Federal Government that the
Federal agency administering the Federal funds has determined to
be a Federal means-tested public benefit under the Personal
Responsibility and Work Opportunities Reconciliation Act of
1996, Public Law 104-193"). See also Hartman v. Hartman, 622
N.W. 2d 871, 877 (Neb. 2001) (noting that "[t]he Social Security
Administration has stated that as to the programs it
administers, for purposes of the federal Personal Responsibility
and Work Reconciliation Act of 1996, only 'supplemental security
income benefits' are '"Federal means-tested public benefits."'"
(quoting 62 Fed. Reg. 45, 284 (August 26, 1997)). SSI and other
8
means-tested government benefits are financed from general
revenues in order to provide disabled indigents with minimally
adequate incomes, whereas SSD benefits are financed from payroll
deductions.
SSD payments represent money which an employee has earned
during his or her employment and also that which his or her
employer has paid for the employee's benefit into a common trust
fund under the Social Security Act. See 42 U.S.C.A. § 405. SSD
"payments are for the purpose of replacing income lost because
of the employee's inability to work upon becoming disabled."
Lightel v. Meyers, 791 So. 2d 955, 959 (Ala. Ct. App. 2001).
Stated another way, SSD payments are a substitute for earned
income and are thereby non-means-tested benefits.
Unlike SSD payments, SSI benefits are not a substitute for
lost income due to disability; rather, they are a supplement to
the recipient's income. The purpose of SSI benefits is to
assure that the income of a recipient is maintained at a level
viewed by Congress as the minimum necessary for subsistence.
Schweiker v. Wilson, 450 U.S. 221, 223, 101 S. Ct. 1074, 1077,
67 L. Ed. 2d 186, 191 (1981); Davis v. Office of Child Support
Enforcement, 20 S.W. 3d 273, 277 (Ark. 2000); In re Marriage of
Benson, 495 N.W. 2d 777, 781 (Iowa Ct. App. 1992).
9
The common qualifying requirements for both SSI and SSD is
an applicant's disability, consisting of "a medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months[,]" and
that the recipient is unable to engage in "substantial gainful
activity," 20 C.F.R. § 416.905(a), defined as being able to do
significant and productive physical or mental duties, done or
intended, for pay or profit. 20 C.F.R. § 416.910. Generally,
if a person can earn more than $700 per month, he or she can
engage in "substantial gainful activity." Angela F. Epps, To
Pay Or Not To Pay, That Is The Question: Should SSI Recipients
Be Exempt From Child Support Obligations?, 34 Rutgers L.J. 63,
66 (Fall 2002); 20 C.F.R. § 416.974(b). SSI eligibility further
requires that the applicant have no more than $2,000 in
financial resources. 20 C.F.R. § 416.1205(c).
Thereby, SSI benefits are payable only when the disabled
person's income and resources are insufficient to provide for
that individual's basic needs. Benson, supra, 495 N.W. 2d at
781. Moreover, the SSI benefit will be reduced by one-third if
the recipient is living in another person's residence and is
receiving both food and shelter. 20 C.F.R. § 416.1131(a).
SSD is payable when the applicant meets the disability
10
requirement, plus additional criteria in the form of minimum
lifetime earnings with contributions into the Social Security
Retirement System. See 20 C.F.R. § 404.315(a)(1). The minor
dependents of an SSD recipient also receive a monthly benefit,
payable to the custodial parent(s). See 20 C.F.R. §§ 404.330 to
.331, .350. A disabled person ineligible for SSD is eligible
for SSI payments under the applicable means test. However, the
SSI program does not provide a benefit for the dependents of the
SSI recipient, unless the dependents themselves independently
meet the SSI eligibility criteria.
These differences between the SSD and SSI programs are
critical to our analysis because non-means-tested benefits, such
as SSD, may be utilized as income when calculating child support
in accordance with the child support guidelines and payments
made to the dependents of the SSD recipient reduce the amount of
the basic child support obligation to be apportioned between the
parties. See Pressler, supra, Appendix IX-B to Rule 5:6A, "Use
of the Child Support Guidelines," "Line Instructions for the
Sole-Parenting Worksheet," "Lines 1 through 5 - Determining
Income," "Sources of [Gross] Income," subparagraph m. (including
SSD benefits within the definition of gross income); Pressler,
supra, Appendix IX-A to Rule 5:6A, "Considerations In Use Of
Child Support Guidelines," ¶10c, "Government Benefits Paid to or
11
for Children" (requiring the subtraction of the non-means-tested
dependent government benefit received by the child from the
basic child support award prior to allocation of that amount
between the parents). See also Herd v. Herd, 307 N.J. Super.
501, 503-04 (App. Div. 1998) (requiring trial courts to consider
SSD payments received by children, attributable to a parent's
Social Security disability status, when calculating a child
support obligation).
Benefits received through the SSI program are exempt from
attachment, garnishment, levy, execution or any other legal
process. 42 U.S.C.A. § 407(a); 20 C.F.R. § 581.104.
Specifically, SSI cannot be garnished or attached for child
support or alimony. 42 U.S.C.A. §659(a). Conversely, Congress
has waived the sovereign immunity created by 42 U.S.C.A.
§ 407(a) with respect to SSD payments and permits enforcement of
child support or alimony obligations through execution against
SSD payments. See 42 U.S.C.A. § 659(a).
The principle of child support is engrained into our common
law, statutory, and rule-based jurisprudence. One of the
fundamental concepts in American society is that parents are
expected to support their children until they are emancipated,
regardless of whether the children live with one, both, or
neither parent. Dunbar v. Dunbar, 190 U.S. 340, 351, 23 S. Ct.
12
757, 761, 47 L. Ed. 1084 (1903); Cumberland County Bd. of Soc.
Servs. v. W.J.P., 333 N.J. Super. 362, 365 (App. Div. 2000)
(noting that "t common law, parents had an absolute duty to
support their children"). In Monmouth County Div. of Soc.
Servs. v. G.D.M., 308 N.J. Super. 83, 87 (Ch. Div. 1997), the
court summarized the evolution of this fundamental requirement,
as follows:
"The duty of parents to provide for the
maintenance of their children is a principle
of natural law." Greenspan v. Slate, 12
N.J. 426, 430 (1953), citing 1 W.
Blackstone, Commentaries on the Laws of
England (1765), 435-36.
(They left out the second part of the equation in Monmouth County v.
G.D.M that the duty of support fits is a RECIPROCAL of the constitutional
right to beget and raise (e.g., care, custody and nurture of) children: extrapolating the
argument, NO CUSTODY; NO SUPPORT!).:
Citing from Monmouth County v. G.D.M., 705 A.2d 408, 308 N.J. Super. 83, 88 (Chancery Div. 1997):
Some courts have gone so far as to ground the parental duty of support in our federal Constitution. See, e.g., Pamela P. v. Frank S., 443 N.Y.S.2d 343, 110 Misc.2d 978 (Fam.Ct.1981). That court stated, "Clearly, the duty of support fits into the legal framework as a RECIPROCAL of the fundamental Constitutional RIGHT to beget and raise children"....
In keeping with this, New Jersey Courts
have long held that a parent is bound to
provide a child with necessities. See
Tomkins v. Tomkins, 11 N.J. Eq. 512, 517-18
(Ch. 1858); Kopack v. Polzer, 5 N.J. Super.
114, 117 (App. Div. 1949), aff'd, 4 N.J.
327, 328 (1950); Greenspan, supra, at 432;
Grotsky v. Grotsky, 58 N.J. 354, 356-57
(1971); Ionno v. Ionno, 148 N.J. Super. 259,
261 (App. Div. 1977); Lynn v. Lynn, 165 N.J.
Super. 328, 342-43 (App. Div.), certif.
denied, 81 N.J. 52 (1979). Today, "s a
general rule, a parent is obliged to
contribute to the basic support needs of an
unemancipated child to the extent of the
parent's financial ability irrespective of
the quality of the relationship between
them." Martinetti v. Hickman, 261 N.J.
Super. 508, 513 (App. Div. 1993). Thus, the
hopeful common law rule noted in Greenspan,
above, thereby has become a realistic
equitable principle as well.
[Footnotes omitted.]
13
The issue of child support has been extensively regulated
by the federal government. Professor Epps has concisely
summarized that regulation and its relationship to public
assistance programs as follows:
In 1975 Congress created the Child Support
Enforcement Program ("CSP"). The goals of
this program were to increase payment and
collection of child support. In 1996,
efforts to accomplish these goals
intensified with the passage of the Personal
Responsibility and Work Opportunities
Reconciliation Act ("PRWORA"). PRWORA
created a new program known as Temporary
Assistance for Needy Families ("TANF") to
replace Aid to Families with Dependent
Children ("AFDC"). TANF is funded by a
block grant given to the state. It is not
an entitlement program as AFDC had been. It
provides a monthly benefit to families but
also requires various work related
activities. The goal of TANF is to get
families off public assistance and to help
them to become self-sufficient. Eligibility
lasts a maximum of five years.
The number of families on welfare was
viewed as a direct consequence of the noncustodial
parent's failure to pay child
support. Therefore, PRWORA included
amendments to the CSP geared toward
increasing the effectiveness of child
support collection efforts. To be eligible
for TANF, a recipient must assist the state
in efforts to collect support from the noncustodial
parent. . . . The state must
comply with the requirements [of TANF] or
risk losing the federal block grant that
supports TANF and the federal funding used
to assist in child support collection
14
efforts. There is also a financial
incentive for states related to the amount
of support they collect.
Each state is required to have a plan
for child support collection. The plan must
include strong measures to collect child
support from the non-custodial parent. . . .
* * * *
The state plan must also provide for
the establishment of child support
guidelines that "[t]ake into consideration
all earnings and income of the non-custodial
parent."
[Epps, supra, 34 Rutgers L.J. at 72-74
(quoting 45 C.F.R. § 302.56(c)(1); footnotes
omitted).]
We recognize the basic obligation of parents to support
their children is deeply rooted in our jurisprudence, as well as
the intent of Congress to require parents to support their
children in order to lessen the need for public assistance.
However, it is undeniable that American society is also
confronted with the problem of disabled parents who are unable
to support themselves, much less their children. See Rachael K.
House, note, Awarding Child Support Against The Impoverished
Parent: Straying From Statutory Guidelines And Using SSI In
Setting The Amount, 83 Ky. L.J. 681, 681-82 (1994-95).
A state court confronted with the issue of whether SSI
benefits are to be considered as income when calculating a
15
parent's child support obligation faces the dilemma of
reconciling the federal mandate of PRWORA to maximize child
support establishment and collection based upon consideration of
all sources of income, with the clear federal intent of Congress
to provide a recipient of SSI benefits a minimum level of income
necessary for subsistence. Schweiker, supra, 450 U.S. at 223,
101 S.Ct. at 1077, 67 L. Ed. 2d at 191.
Here, the uncontroverted evidence supports the conclusion
that defendant is totally disabled with a schizophrenic disorder
and indisputably indigent, surviving solely on SSI benefits
directed at providing him with the legislatively-established
minimum level of subsistence. The intent of the child-support
framework to ensure that parents support their children has no
application to those parents whose sole source of income is SSI,
and where such parents have no ability to generate any
additional income. To require SSI benefits to be diverted under
such circumstances for child-support purposes would undercut the
purpose of Congress in enacting the SSI program and hardly
satisfies the intent of PRWORA to remove and keep individuals
off the welfare rolls in any meaningful way.3 Moreover, implicit
in the SSI program is the intention that these payments are for
3 Here, the child support obligation established by the December
20, 2002 order equates to approximately $9.23 per week.
16
the benefit of the recipient, rather than the recipient and his
or her dependents. See Tennessee Dep't of Human Servs. ex rel.
Young v. Young, 802 S.W. 2d 594, 598 (Tenn. 1990) (noting that
any reduction of SSI benefits would necessarily reduce the
recipient's income below the Congressional-guaranteed minimum
level for subsistence). If Congress had intended that SSI
benefits be applied toward the support of a recipient's
dependents, it could have so stated or provided a dependent
benefit as it did with the SSD program.
The United States Supreme Court has not considered whether
a state is precluded from using SSI benefits as income in child
support calculations. Epps, supra, 34 Rutgers L.J. at 91.
However, in addressing that issue, the overwhelming majority of
courts in other jurisdictions have ruled that a disabled parent
cannot be ordered to pay child support when the sole parental
income consists of his or her SSI benefits, and that parent is
unable to generate any additional income. See, e.g., Davis,
supra, 20 S.W. 3d at 278 (ruling that federal law prohibits
state court-ordered child support payments exclusively from SSI
benefits, and noting that thirty-eight states have exempted SSI
benefits from inclusion in a calculation of gross income for
child support purposes); Marrocco v. Giardino, 767 A. 2d 720,
728-29 (Conn. 2001) (noting that both SSI and state
17
supplementation benefits are awarded on the basis of need and
are designed to protect the individual recipients from poverty
and that requiring child support to be paid therefrom would
reduce the recipient's income below that necessary to protect
him or her from poverty in contravention to the legislative
policy that drives these programs); Lee v. Lee, 859 So. 2d 408,
409-10 (Miss. Ct. App. 2003) (recognizing that a child-support
award cannot be entered where the sole income of a parent is SSI
benefits, but affirming order assessing child support against
the SSI recipient where the trial court found recipient had
ability to generate other income); Rose on behalf of Clancy v.
Moody, 629 N.E. 2d 378, 381 (N.Y. 1993) (requiring a parent,
whose sole source of income is means-tested income, to pay a
minimum amount of child support "is not only unjust and
inappropriate, it is a legal pretense"), cert. denied sub nom.,
Attorney General of New York v. Moody, 511 U.S. 1084, 114 S. Ct.
1837, 128 L. Ed. 2d 464 (1994); (c.f., Hurd v. Hurd, 757 N.Y.S.
2d 170, 171 (N.Y. App. Div. 2003) (ruling that child support can
be ordered against an SSI recipient if the hearing examiner
concludes that the recipient has the capacity to generate
additional income)); Reyes v. Gonzales, 22 S.W. 3d 516, 519-20
(Tex. Ct. App. 2000) (father's SSI benefits cannot be considered
in calculation of father's net resources for purposes of
18
determining father's child support obligation), cert. denied,
533 U.S. 929, 121 S. Ct. 2550, 150 L. Ed. 2d 717 (2001). See
also Davie v. Office of Child Support Enforcement, 76 S.W. 3d
873, 875 (Ark. 2002); Cox v. Cox, 654 N.E. 2d 275, 277 (Ind. Ct.
App. 1995); Department of Public Aid ex rel. Lozada v. Rivera,
755 N.E. 2d 548, 550 (Ill. App. Ct. 2001); Becker County Human
Servs. v. Peppel, 493 N.W. 2d 573, 576 (Minn. Ct. App. 1992);;
Young, supra, 802 S.W. 2d at 597; Langlois v. Langlois, 441 N.W.
2d 286, 287-88 (Wis. Ct. App. 1989).
A minority of jurisdictions have interpreted the antigarnishment
provisions contained in 42 U.S.C.A. § 407(a) as only
precluding use of the federal government as a collection agency
for child support obligations with respect to SSI benefits, but
not as preventing an award of child support against a parent
whose only source of support is his SSI benefits. See, e.g.,
Griggs v. Griggs, 435 So. 2d 103, 105 (Ala. Civ. Ct. App. 1983)
(concluding that SSI benefits were aimed to protect the
recipient's family as well as the recipient and were therefore
available for consideration in the calculation of child
support); Commonwealth ex rel. Morris v. Morris, 984 S.W. 2d
840, 841-42 (Ky. 1999) (in a four-to-three decision, holding
that state statute permitting courts to include SSI benefits
when calculating child support obligations was not preempted by
19
42 U.S.C.A. § 407(a)); Whitmore v. Kenney, 626 A. 2d 1180, 1184-
85 (Pa. Super. Ct. 1993) (finding that 42 U.S.C.A. § 407(a) only
precludes actions to compel the federal government to pay child
support obligations from future SSI benefits and not from
considering SSI benefits when calculating child support), appeal
denied, 641 A. 2d 587 (Pa. 1994).
The Pennsylvania court's reasoning in Whitmore, supra, 626
A. 2d at 1182-1185, warrants discussion. There, in concluding
that SSI benefits are available for consideration in the
establishment of a child support obligation, the court relied
upon 42 U.S.C.A. § 659(a), a section of the Child Support
Enforcement Act of 1975, 42 U.S.C.A. §§ 651 through 662, and the
Supreme Court's opinion in Rose v. Rose, 481 U.S. 619, 107 S.
Ct. 2029, 95 L. Ed. 2d 599 (1987).
In Whitmore, supra, the court concluded that 42 U.S.C.A.
§ 659(a) limits the application of 42 U.S.C.A. § 407(a) to
garnishment applications to compel the federal government to pay
child support obligations out of future SSI benefit payments.
626 A. 2d 1184-85. 42 U.S.C.A. § 659(a), entitled "Consent to
support enforcement," provides as follows:
Notwithstanding any other provision of law
(including section 407 of this title and
section 5301 of Title 38), effective January
1, 1975, moneys (the entitlement to which is
based upon remuneration for employment) due
20
from, or payable by, the United States or
the District of Columbia (including any
agency, subdivision, or instrumentality
thereof) to any individual, including
members of the Armed Forces of the United
States, shall be subject, in like manner and
to the same extent as if the United States
or the District of Columbia were a private
person, to withholding in accordance with
State law enacted pursuant to subsections
(a)(1) and (b) of section 666 of this title
and regulations of the Secretary under such
subsections, and to any other legal process
brought, by a State agency administering a
program under a State plan approved under
this part or by an individual obligee, to
enforce the legal obligation of the
individual to provide child support or
alimony.
In Lozada, supra, 755 N.E. 2d at 551, the Illinois Court of
Appeals analyzed this reasoning of Whitmore and concluded it was
misplaced, stating that "t is settled that section 659(a)
does not directly expose SSI benefits, whether paid or unpaid,
to 'legal process,' as the entitlement to SSI benefits is not
based on remuneration for employment." Ibid. (citing to Davis,
supra, 20 S.W. 3d at 276-77, and Young, supra, 802 S.W. 2d at
596-97). We agree. Clearly, 42 U.S.C.A. § 659(a) exempts nonmeans-
tested federal benefits, "the entitlement to which is
based upon remuneration for employment," from execution or
garnishment, and retains the sovereign immunity established by
42 U.S.C.A. § 407(a) as to SSI benefits.
21
In Rose, supra, the Supreme Court ruled that a Tennessee
statute that permitted the payment of child support from
veteran's disability benefits was not preempted by federal law.
481 U.S. at 636, 107 S. Ct. at 2039, 95 L. Ed. 2d at 614. The
Whitmore court's analogous reliance upon Rose with respect to
SSI benefits, however, is misplaced
because veterans' disability benefits are
more similar to [SSD] benefits than SSI
benefits. Both [SSD] benefits and veterans'
benefits are received for time on the job.
SSI benefits, by contrast, are awarded
solely on the basis of need. Additionally,
veterans' benefits are intended to "provide
reasonable and adequate compensation for
disabled veterans and their families," Rose,
[supra,] 481 U.S. at 630, 107 S. Ct. at
2036, [95 L. Ed. 2d at 610], while SSI
benefits are awarded to protect only the
recipient.
[Becker, supra, 493 N.W. 2d at 576; see also
Lozada, supra, 755 N.E. 2d at 553.]
We are persuaded by the reasoning of those jurisdictions
that have held that SSI benefits cannot be included in the
child-support calculus. 42 U.S.C.A. § 407(a) and the
Congressional intent in creating the program preclude the
inclusion of such benefits in establishing, modifying or
collecting child support when the sole income of the parent
consists of those SSI benefits and the parent otherwise has no
ability to generate additional income. To permit our courts to
22
base child support payments solely upon a parent's receipt of
SSI benefits would be contrary to the clear intent of the SSI
program.
