Amy Cassello v. Michael Cassello (2013)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR CONTEMPT # 207

BACKGROUND

On or about December 2, 2012, the Social Security Administration notified the defendant, Michael Cassello, hereinafter referred to as “the defendant,” and the plaintiff, Amy Cassello, hereinafter referred to as “the plaintiff,” that the former had been deemed disabled by the United States Social Security Administration, effective December 31, 2009, and, thus, he was eligible for benefits commencing June 2011.

On or about January 29, 2013, the Court, Gould, J., set modified support and alimony orders at $44 per week for child support and $100 per month for alimony.   On or about February 23, 2013, the defendant received a letter from the Social Security Administration indicating that the child support enforcement department had issued a wage withholding order against the defendant's social security disability payments.

The defendant objects to the wage withholding order against his social security benefits, claiming that his benefits are exempt per 42 U.S.C. Sec. 407.   The defendant primarily argues that a fair reading of both 42 U.S.C. § 407 and 42 U.S.C. § 659 compels the conclusion that social security benefits made pursuant to 42 U.S.C. § 1383 are not subject to garnishment.

The defendant is correct in that supplemental social security disability benefits under § 1383 are not subject to garnishment, because the facts and history of the case demonstrate that the defendant has received disability benefits pursuant to § 402 rather than § 1383, such disability benefits are an exception to the exemption set forth in § 407 and are therefore subject to garnishment for purposes of satisfying state child support and alimony orders.

DISCUSSION

I42 U.S.C. § 407 and 42 U.S.C. § 659

Title II of the Social Security Act, which is entitled “Federal Old–Age, Survivors, and Disability Insurance Benefits” and is codified in 42 U.S.C. §§ 401–33, provides for disability payments to insured workers.¹  Section 207 of the Social Security Act, 42 U.S.C. 407, provides in relevant part:  “The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law ․ No other provision of law, enacted before, on, or after April 20, 1983, may be construed to limit, supersede, or otherwise modify the provisions of this section except to the extent that it does so by express reference to this section.”  (Emphasis added.)   Thus, in accordance with this statutory language, disability benefits made under Title II of the Act are ordinarily neither assignable nor subject to other legal process.

Nevertheless, in 1974, Congress enacted the Child Support Enforcement Act, 42 U.S.C. § 659, which provides in relevant part:  “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 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.”  (Emphasis added.)  “Child support” is further defined in the Act as the “amounts required to be paid under a judgment, decree, or order ․ issues by a court or an administrative agency of competent jurisdiction, for the support and maintenance of a child ․” 42 U.S.C. § 659(I)(2).   The term “alimony,” has been defined as “the legal obligations of an individual to provide the same, means periodic payments of funds for the support and maintenance of the spouse (or former spouse) of the individual, and (subject to and in accordance with State law) includes separate maintenance, alimony pendente lite, maintenance, and spousal support ․” 42 U.S.C. § 659(I)(3).   The statute furthermore directs that any federal agency who is served with such a state court order must, within fifteen (15) days of service, send the obligor a notice that it will garnish his wages or benefits.  42 U.S.C. § 659(c)(2)(A).   Subsequently, within thirty (30) days of service, the agency must begin withholding sums from the obligor's wages or benefits in compliance with the state court order.  42 U.S.C. § 659(c)(2)(c).  Thus, § 659 effectually provides for a limited exception to the exemption set forth in § 407(a) for state child support and alimony orders.   In addition, § 659 also serves a statutory waiver of sovereign immunity.   Because the general rule is that the waiver of the federal government's sovereign immunity “must be unequivocally expressed in statutory text,” this provision expressly represents a limited waiver of such immunity in order to allow for the enforcement of state child support and alimony orders.   See Trimble v. United Stated Social Security, 369 Fed.Appx. 27, 30 (11th Cir.2010).

Although § 659(a) specifically pertains to the waiver of sovereign immunity,² courts have interpreted this section as plainly authorizing the garnishment of wages payable to federal employees for the purpose of satisfying an individual's obligations under state court decrees to pay child support or alimony.³  DeTienne v. DeTienne, 815 F.Sup. 394, 396 (D.Kan.1993).   In DeTienne v. DeTienne, the federal district court referred to 42 U.S.C. § 662, which “explain[ed] the intent behind and the scope of the phraseology contained in section 659(a),” and particularly focused on the meaning of “remuneration of employment” as it related to § 659(a).  DeTienne v. DeTienne, supra, 396.  Section 662 defined the term in two categories:  “(1) compensation paid or payable for personal services of such individual, whether such compensation is denominated as wages, salary, commission, bonus, pay, or otherwise ․ or (2) periodic benefits (including a periodic benefit as defined in section 228(h)(3) of this Act [42 U.S.C. § 428(h)(3) ] ) or other payments to such individual under the insurance system established by title II of this Act [42 U.S.C. §§ 401 et seq.]  ․” (Emphasis added;  internal quotation marks omitted.)  DeTienne v. DeTienne, supra, 815 F.Sup. 396.   Although § 662 was repealed in 1996,⁴ courts have stated that the definition of “remuneration of employment” can now be found in substantially the same terms in 42 U.S.C. 659(h)(A).   See Moyle v. Director, OWCP, 147 F.3d 1116, 1121 n.7 (9th Cir.1998).  Section 659(h)(A) provides in relevant part:  “Subject to paragraph (2), moneys payable to an individual which are considered to be based upon remuneration for employment, for purposes of this section ․ (A) consist of (I) compensation payable for personal services of the individual, whether the compensation is denominated as wages, salary, commission, bonus, pay, allowances, or otherwise (including severance pay, sick pay, and incentive pay);  (ii) periodic benefits (including a periodic benefit as defined in section 428(h)(3) of this title) or other payments (I) under the insurance system established by subchapter II of this chapter .. .” (Emphasis added.)   Although the language in § 659(h)(A) refers to the insurance system established by “subchapter II,” and § 662 had referred to the insurance system established by Title II of Social Security Act, “subchapter II” is, indeed, Title II of the Social Security Act. Both 42 U.S.C. § 401 et seq. and § 659 are under chapter VII of Title 42 of the U.S.C., the former being part of subchapter II, and the latter being a part of subchapter IV. Therefore, the current statutory language in § 659, although slightly different in terminology, encompasses the same statutory provision that was once codified in § 662.   Accordingly, § 659 “carves out a limited exception to the exception set forth in section 407(a)” and the plain language of the section demonstrates that benefits received pursuant to 42 U.S.C. §§ 401 et seq. are, in fact, subject to garnishment for purposes of child support and alimony.⁵  See In re Marriage of Truhlar, 404 Ill.App.3d 176, 179, 935 N.E.2d 1199, 1201 (2010).

II

Other Jurisdictions and Legislative Intent of 42 U.S.C. § 407

In DeTienne v. DeTienne, the court noted that state courts of other jurisdictions have continuously held that social security benefits under 42 U.S.C §§ 401 et seq. are subject to garnishment to enforce child support and alimony obligations despite the exemption set forth in § 407.  DeTienne v. DeTienne, supra, 815 F.Sup. 394, 306 n.3, citing In re Marriage of Schonts, 345 N.W.2d 145 (IowaApp.1983);  Brown v. Brown, 32 OhioApp.2d 139, 288 N.E.2d 852 (1972);  Meadows v. Meadows, 1980 OK 158, 619 P.2d 598 (Okla.1980);  Huskey v. Batts, 1974 OK CIV APP 58, 530 P.2d 1375 (Okla.App.1974).   Courts have looked to § 659, and interpreted it as a way of reinforcing state law, primarily because the exception in § 659 underscores the importance of child support and familial obligations.  In re Marriage of Schonts, supra, 345 N.W.2d 147 (enactment of § 659 only serves to reinforce Iowa case law and reflects the importance that Congress, as well as Iowa courts, attributes to support payments).

Moreover, state courts have referred to the legislative intent behind the enactment of § 407, and have applied its interpretation to claims pertaining to child support and alimony.   As one court explained:  “The intent behind the exemption in the Social Security Act is to protect a person and those dependent upon him from the claim of creditors.”  (Emphasis added.)  Brown v. Brown, 32 Ohio App.2d 139, 139, 288 N.E.2d 852, 852 (1972).   Courts have then addressed the issue of whether a wife's claim for alimony or child support falls under the category of a “creditor's claim” that would accordingly warrant exemption, and have ultimately found that the exemption pursuant to § 407 does not serve to relieve the individual of his or her family obligations.   Specifically, in the context of wife's claim for alimony, the Ohio Appellate Court emphasized:  “The purpose of exemptions is to relieve the person exempted from the pressure of claims hostile not only to his own essential needs but also to those of his dependents.   But the purpose cannot be one relieving him of familial obligations, perhaps destroying what may be the family's last word and only security, short of public relief ․ Moreover, if we were to uphold his claim of exemption we would feed the husband and starve the wife.”   (Emphasis added;  internal quotation marks omitted.)  Brown v. Brown, supra, 32 Ohio App.2d 141, 288 N.E.2d 853, citing Thiel v. Thiel, 41 N.J. 446, 451, 197 A.2d 354 (1964).   See also Meadows v. Meadows, supra, 619 P.2d 598 (in allowing the exemption in regard to a claim for alimony “would subvert the intention of the legislature by allowing a husband who has been ordered to support his former wife to escape his legal duty”).   In the context of child support payments, the Iowa Appellate Court similarly explained:  “It would be incongruous and unjust to hold that all of these exemptions from liability for ordinary debts should operate to the prejudice of the wife or children in a contest with the husband as to alimony and support money when the principal reason for the exemption was to secure these dependents.”  (Internal quotation marks omitted.)  In re Schonts, supra, 345 N.W.2d 146, citing In re Bagnall's Guardianship, 238 Iowa 905, 940, 29 N.W.2d 597, 615 (1947).

Hence, given the legislative intent of § 407, as well as the position that other state courts have held, social security disability benefits are subject to garnishment for the purpose of fulfilling familial obligations.

III

SSI Benefits under 42 U.S.C. § 1383

The supplemental social security income (SSI) program, entitled “Supplemental Security Income for Aged, Blind, and Disabled” is currently set forth in subchapter XVI, 42 U.S.C. §§ 1381–83d, which is distinguishable from the social security disability (SSD) benefits under 42 U.S.C. §§ 401 et seq.   “SSI payments are a form of public assistance and have nothing to do with earning a person may have had ․ SSI was created to benefit persons who are entitled to little or no income from Social Security disability benefits.”   (Citations omitted.)  Dept. of Human Services v. Young, 802 S.W.2d 594, 597 (Tenn.1990).   As a result, those who receive SSI benefits are “by definition unemployed and unemployable.”  (Emphasis in original.)  Id., 599.   The income that an individual received under SSI is intended to raise the recipient's income to the prescribed minimum level, whereas the recipient of SSD benefits receives an amount that is based upon how much that person has paid into the social security system over time.  Id., 597.  “SSI is intended to supplement a recipient's income, not substitute lost income because of a disability.   The recipient is not required to pay into the social security system in order to qualify for SSI benefits.   Thus, SSI provides a person with a minimum income and is designed to help poor, needy people.”  (Internal quotation marks omitted.)  Barnes v. Dept. of Human Services, 42 So.3d 10, 15 (2010), quoting Metz v. Metz, 120 Nev. 786, 790, 101 P.3d 779, 782–83 (2004).   Furthermore, the intention of the payments given pursuant to the SSI program is to benefit solely the recipient, whereas the SSD program is intended for the benefit of the recipient as well as the recipient's dependents.  42 U.S.C. § 402.   Therefore, under the SSD program, “children of individuals entitled to disability insurance benefits receive a separate payment which increases after the death of the insured ․” See also 42 U.S.C. § 402(d).  Unlike the SSD program, however, “SSI nowhere provides for separate payments to dependents.”  Dept. of Public Aid v. Rivera, 324 Ill.App.3d 476, 483, 755 N.E.2d 548, 554 (2001).

Courts have remained cognizant of the distinct purposes for which these programs are meant to serve.   In addressing the issue of whether SSI benefits may be garnished for child support or alimony purposes, courts have emphasized that allowing “process to issue for the collection of child support obligations from SSI funds would reduce the monthly income of the obligor SSI recipient.   Because of the nature of the program's mission, SSI recipients have a very low income level and little, if any, opportunity to raise that level because of their age or disability.   Subtracting child support payments, in the variable amounts set by state trial judges, from this already low figure would reduce the individual recipient's income below the guaranteed minimum income level for aged, blind, and disabled persons ․ which is the essence of the legislative intent behind the SSI program.”  (Citation omitted;  internal quotation marks omitted.)  Dept. of Human Services v. Young, supra, 802 S.W.2d 597, citing Schweiker v. Wilson, supra, 450 U.S. 221, 223–24, 101 S.Ct. 1074, 1077, 67 L.Ed.2d 186 (1981).   In addition, courts have also looked to the statutory text of § 659, which provides the exception for the exemption under 407, and have noted that § 659 makes no express reference to the exemption of SSI benefits and expressly provides for monies based upon “remuneration of employment.”   42 U.S.C. § 659.  “Because SSI benefits are paid to those who are by definition unemployed and unemployable, the receipt of SSI benefits cannot be based upon remuneration of employment.”  (Emphasis in original;  internal quotation marks omitted.)  Dept. of Human Services v. Young, 802 S.W.2d 599.   Accordingly, based on the intent that the program is to serve, as well as the statutory text of § 659, SSI benefits fall under the exemption pursuant to § 407 and are not subject to withholding orders.⁶

In the present case, the defendant argues that because the defendant had received benefits pursuant to the SSI program, that the funds are exempt under federal law.   Although this argument is correct, it is nonetheless misplaced.   Despite the fact that the defendant maintains that the division of child support enforcement refused to disclose the contents of the file, the facts of the case at hand, as well as the procedural history of the case, demonstrate that the defendant has been receiving SSD benefits rather that SSI benefits.   Firstly, the defendant stated in his brief that as a result of being deemed disabled by the Social Security Administration, the defendant and the plaintiff both received a payment by Social Security.   As mentioned above, the SSI program does not provide for separate payments to the recipient's dependents.   Secondly, the defendant's previous motion to modify child support and alimony, dated December 12, 2012, supports the position that the defendant has been receiving benefits pursuant to the SSD program, rather than the SSI program.   The defendant specifically sought to modify based on that he had “been granted social security disability benefits for himself and his minor children which will result in the minor children receiving social security disability dependents' benefits pursuant to 42 U.S.C. § 402(d).”  As seen, the SSD program is set forth in 42 U.S.C. § 402, whereas the SSI program is set forth in 42 U.S.C. § 1383.   Accordingly, the defendant's benefits under the SSD program are an exception to the exemption in § 407 and may be garnished and/or attached for state child support and alimony orders.

CONCLUSION

The defendant's social security benefits are subject to garnishment, pursuant to 42 U.S.C. § 659, and are not exempt under 42 U.S.C. § 407.

GOULD, J.

FOOTNOTES

FN1. Benefits pursuant to these sections differ than the benefits received pursuant to 42 U.S.C. § 1383, which will be discussed further in Part III..  FN1. Benefits pursuant to these sections differ than the benefits received pursuant to 42 U.S.C. § 1383, which will be discussed further in Part III.

FN2. The issue of sovereign immunity as it relates to § 659 has been contested in many jurisdictions as to the implications and extent of waiving such immunity.   See Edwards v. Goldberg, 779 F.2d 50 (6th Cir.1985) (although social security benefits are subject to orders of garnishment to satisfy child support obligations under § 659, the government is not liable for honoring such a writ of garnishment even if the issuing court lacked personal jurisdiction over the obligator);  Stubli v. Principi, 362 F.Sup.2d 949, 951 (D.Ohio 2005) (although § 659 provides that monies owed by the United States to its employees are subject to limited garnishment to satisfy child support or alimony obligations, it creates neither a federal right to garnishment nor any federal jurisdiction over garnishment proceedings because § 659 simply authorizes federal agencies to honor state court garnishment orders providing for payment of child support and alimony);  Jacobson v. U.S., 422 N.J.Super. 561, 570–71, 29 A.3d 1103, 1109 (2011) (although allowing enforcement of garnishment orders issued by state courts, § 659 did not expressly waive federal government's sovereign immunity from damages liability for its failure to comply)..  FN2. The issue of sovereign immunity as it relates to § 659 has been contested in many jurisdictions as to the implications and extent of waiving such immunity.   See Edwards v. Goldberg, 779 F.2d 50 (6th Cir.1985) (although social security benefits are subject to orders of garnishment to satisfy child support obligations under § 659, the government is not liable for honoring such a writ of garnishment even if the issuing court lacked personal jurisdiction over the obligator);  Stubli v. Principi, 362 F.Sup.2d 949, 951 (D.Ohio 2005) (although § 659 provides that monies owed by the United States to its employees are subject to limited garnishment to satisfy child support or alimony obligations, it creates neither a federal right to garnishment nor any federal jurisdiction over garnishment proceedings because § 659 simply authorizes federal agencies to honor state court garnishment orders providing for payment of child support and alimony);  Jacobson v. U.S., 422 N.J.Super. 561, 570–71, 29 A.3d 1103, 1109 (2011) (although allowing enforcement of garnishment orders issued by state courts, § 659 did not expressly waive federal government's sovereign immunity from damages liability for its failure to comply).

FN3. The issue of whether § 659(a) appears to refer only to wages due to federal government employees, and not to private employees, has been addressed.  DeTienne v. DeTienne, 815 F.Sup. 394, 396 (D.Kan.1993).   Nonetheless, because the statute also reaches Title II Social Security disability benefits, which would otherwise have been exempt pursuant to § 407, the issue of the defendant's status as a public or private employee is irrelevant.   See DeTienne v. DeTienne, supra, 396 n.1 (noting that in the context of garnishing wages and salaries, federal courts have interpreted § 659(a) as applying primarily to federal employees).   As discussed below, “renumeration of employment” is defined in two categories, the latter of which is applicable here..  FN3. The issue of whether § 659(a) appears to refer only to wages due to federal government employees, and not to private employees, has been addressed.  DeTienne v. DeTienne, 815 F.Sup. 394, 396 (D.Kan.1993).   Nonetheless, because the statute also reaches Title II Social Security disability benefits, which would otherwise have been exempt pursuant to § 407, the issue of the defendant's status as a public or private employee is irrelevant.   See DeTienne v. DeTienne, supra, 396 n.1 (noting that in the context of garnishing wages and salaries, federal courts have interpreted § 659(a) as applying primarily to federal employees).   As discussed below, “renumeration of employment” is defined in two categories, the latter of which is applicable here.

FN4. See Pub.L. 104–93, Title III, § 362(b)(1), Aug. 22, 1996, 110 Stat. 2246..  FN4. See Pub.L. 104–93, Title III, § 362(b)(1), Aug. 22, 1996, 110 Stat. 2246.

FN5. In addition, it is worth noting that courts have not interpreted § 659(h)(A) as excluding disability benefits that the courts have previously found to be included under § 662.   See Moyle v. Director, OWCP, supra, 147 F.3d 1116..  FN5. In addition, it is worth noting that courts have not interpreted § 659(h)(A) as excluding disability benefits that the courts have previously found to be included under § 662.   See Moyle v. Director, OWCP, supra, 147 F.3d 1116.

FN6. Some courts have made the distinction that § 407 prevents SSI benefits from being subject attached or garnished for child support and alimony purposes, but that § 407 does not prevent SSI benefits from being included in the initial calculation for child support.   See Barnes v. Dept. of Human Services, supra, 42 So.3d 17.   See also Morris v. Morris, 984 S.W.2d 840, 847 (Ky.1998) (court held that state statute that allowed SSI benefits to be included in calculation for determining amount of child support did not conflict with § 407).   Compare Reyes v. Gonzales, 22 S.W.3d 516, 520 (Tex.App.2000) (SSI disability benefits could not be considered in the calculation of father's net resources for determining child support).Regardless, it is important to note that Connecticut does not include SSI benefits in calculating child support, but does include SSD benefits.   SSI payments and federal, state, and local assistance grants are specifically listed under the exclusions sections of the regulations.  Regs., Conn. State Agencies § 46b–215a–1(11)(B)(ii) and (iii).   See also Regs., Conn. State Agencies § 46b–215a–1(11)(A)(x).  Because Connecticut's regulations provide that SSI benefits are excluded, Connecticut's regulations do not conflict with 42 U.S.C. §§ 407 and 659.   Accordingly, the state may include SSD disability benefits in support determinations, as well as subject the benefits to withholding orders.   See Jenkins v. Jenkins, 243 Conn. 584, 590–91, 704 A.2d 231 (1998)..  FN6. Some courts have made the distinction that § 407 prevents SSI benefits from being subject attached or garnished for child support and alimony purposes, but that § 407 does not prevent SSI benefits from being included in the initial calculation for child support.   See Barnes v. Dept. of Human Services, supra, 42 So.3d 17.   See also Morris v. Morris, 984 S.W.2d 840, 847 (Ky.1998) (court held that state statute that allowed SSI benefits to be included in calculation for determining amount of child support did not conflict with § 407).   Compare Reyes v. Gonzales, 22 S.W.3d 516, 520 (Tex.App.2000) (SSI disability benefits could not be considered in the calculation of father's net resources for determining child support).Regardless, it is important to note that Connecticut does not include SSI benefits in calculating child support, but does include SSD benefits.   SSI payments and federal, state, and local assistance grants are specifically listed under the exclusions sections of the regulations.  Regs., Conn. State Agencies § 46b–215a–1(11)(B)(ii) and (iii).   See also Regs., Conn. State Agencies § 46b–215a–1(11)(A)(x).  Because Connecticut's regulations provide that SSI benefits are excluded, Connecticut's regulations do not conflict with 42 U.S.C. §§ 407 and 659.   Accordingly, the state may include SSD disability benefits in support determinations, as well as subject the benefits to withholding orders.   See Jenkins v. Jenkins, 243 Conn. 584, 590–91, 704 A.2d 231 (1998).

Gould, Mark T., J.