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Department of Public Aid ex rel Lozada v. Rivera

August 31, 2001

THE DEPARTMENT OF PUBLIC AID EX REL. FELICITA LOZADA, PETITIONER-APPELLANT
v.
EDWARD RIVERA, RESPONDENT-APPELLEE



Appeal from the Circuit Court of Du Page County. No. 93-F-1412 Honorable Thomas C. Dudgeon, Judge, Presiding

The opinion of the court was delivered by: Justice Bowman

UNPUBLISHED

Petitioner, Felicita Lozada, appeals a judgment ordering her to pay $94 monthly child support to respondent, Edward Rivera. Petitioner argues that (1) the trial court could not order her to pay any child support because she depends entirely on federal Supplemental Security Income (SSI), which federal law exempts from child support obligations; and (2) the award is excessive. Because we agree with petitioner's first claim of error, we vacate the judgment without deciding petitioner's second claim. We hold that federal law forbids subjecting SSI benefits to child support orders. As SSI is petitioner's sole source of income, the order in this case must be vacated outright.

The parties have never married each other. Their son was born in 1991. In 1994, an agreed order declared respondent the minor's father and ordered him to pay child support. In 1997, the minor moved in with respondent. On April 13, 1999, the circuit court terminated child support retroactive to December 21, 1997.

Petitioner petitioned for custody or, alternatively, visitation. On June 21, 1999, an agreed order gave respondent custody of the minor and allowed petitioner visitation. Respondent petitioned for child support. On December 1, 1999, the trial court entered a written order stating that petitioner currently received $500 a month in "SSD," none of which was going to support the minor. The order set temporary child support at $100 monthly and scheduled a hearing on permanent child support.

On December 29, 1999, petitioner moved to vacate the order of December 1, 1999. Her motion alleged the following. Although the December 1, 1999, order required petitioner to pay child support out of "SSD," she does not receive social security disability benefits (SSD) but SSI. The difference is crucial because SSD is financed from payroll deductions but SSI is financed out of general revenues in order to provide disabled indigents with minimally adequate incomes. SSI does not raise petitioner's income over the poverty line, and she cannot afford child support. Moreover, petitioner's SSI payments are immune under section 407 of the Social Security Act (42 U.S.C.A. §407 (West 1991)).

On February 9, 2000, the cause proceeded to a hearing with both parties present. Petitioner testified about her income and expenses. As pertinent here, she stated that she is disabled and receives $512 monthly in SSI along with food stamps and medicaid. Petitioner lives in subsidized housing, but she does not work and has no income but SSI. Petitioner's teenage daughter (not by respondent) lives with her, but petitioner receives no child support on her behalf. The trial court concluded that petitioner could afford to pay respondent $90 monthly support on behalf of the parties' son. The court entered an order to this effect.

Petitioner timely appealed. Respondent has not filed a brief, but we may decide the merits of this appeal without the aid of an appellee's brief. See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).

We agree with petitioner that federal law prohibited the trial court from ordering petitioner to pay any child support out of her SSI allowance. Because SSI is petitioner's only regular income, we vacate the entire support award.

SSI is a national program to provide supplemental security income to "[e]very aged, blind, or disabled individual who is determined [under federal standards] to be eligible on the basis of his income and resources." 42 U.S.C.A. §1381a (West Supp. 2001). The purpose of SSI is to provide a subsistence allowance to (among others) anyone who is unable to engage in any substantial gainful activity by reason of a disability that can be expected to result in death or has lasted or can be expected to last for a continuous period of at least 12 months. See 42 U.S.C.A. §1382c(a)(3)(A) (West Supp. 2001); Schweiker v. Wilson, 450 U.S. 221, 223-24, 67 L. Ed. 2d 186, 191, 101 S. Ct. 1074, 1077 (1981).

Section 407(a) states:

"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." 42 U.S.C.A. §407(a) (West 1991).

We agree with petitioner that section 407(a) preempts state child support laws and shelters any of her SSI payments from going to child support. A federal law preempts state regulation of domestic matters if "Congress has 'positively required by direct enactment' that state law be preempted." Davis v. Office of Child Support Enforcement, 341 Ark. 349, ___, 20 S.W.3d 273, 275 (2000), quoting Rose v. Rose, 481 U.S. 619, 625, 95 L. Ed. 2d 599, 607, 107 S. Ct. 2029, 2033-34 (1987). We agree with the courts that have held that section 407(a) has such preemptive force in that it prohibits state courts from ordering child support to come from SSI benefits. See Davis, 341 Ark. at ___, 20 S.W.2d at 276; Becker County Human Services v. Peppel, 493 N.W.2d 573, 576 (Minn. App. 1992); Tennessee Department of Human Services ex rel. Young v. Young, 802 S.W.2d 594, 597-99 (Tenn. 1990). See also Commonwealth ex rel. Morris v. Morris, 984 S.W.2d 840, 842-47 (Ky. 1998) (Stephens, J., dissenting). To allow courts to order child support payments to come out of SSI benefits would seriously damage the clear and substantial interests that section 407(a) represents.

Section 407(a) states that "none of the moneys paid or payable under [SSI] shall be subject to execution, levy, attachment, garnishment, or other legal process." 42 U.S.C.A. ยง407(a) (West 1991). While section 407(a) undoubtedly bars a state court from garnishing SSI benefits or ordering future benefits to be withheld (see Morris, 984 S.W.2d at 841; Young, 802 S.W.2d at 599; Whitmore v. Kenney, 426 Pa. Super. 233, 241, 626 A.2d 1180, 1184 (1993)), it appears to prevent more than just the use of the federal government as a collection agency for child support obligations. ...


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