TN 15 (11-12)

PR 04015.008 Connecticut

A. PR 13-003 Court Order for Garnishment of Social Security Underpayment Due to the Heir of Decedent James

DATE: October 2, 2012

1. SYLLABUS

The Office of the General Counsel (OGC) has offered an opinion regarding the right to garnish the inheritance of an underpayment of SSA benefits due a deceased number holder which is payable to the son of the deceased. The Probate Court’s order is clearly an order to enforce an obligation to pay child support against the benefits due the deceased wage earner and conforms to the laws of Connecticut “on its face.” Therefore, the SSA underpayment, which represents a benefit payment due the deceased, is subject to garnishment.

2. OPINION

BACKGROUND

This memorandum responds to your July 27, 2012, written request for an opinion regarding the possible assignment of benefits involving deceased number-holder James. Jeffrey, the son of the decedent, James stood to inherit an underpayment from SSA in the amount of $4,766.10. However, the Connecticut IV-D agency 1 filed a lien for overdue child support against Jeffrey ’ inheritance. On March 20, 2012, the Connecticut Probate Court ordered SSA to pay $4,516.10 to the Connecticut IV-D agency, finding that the underpayment was part of the inheritance, and thus, subject to the lien. You asked whether the March 20, 2012, order from the Connecticut Probate Court satisfies the criteria of POMS GN 02410.210. This question, in turn, requires an evaluation of two sub-issues: (1) whether the order is clearly to enforce, modify, or terminate an obligation to pay child support or alimony; and (2) whether the order “on its face” conforms to the laws of the issuing jurisdiction. As explained below, the order is clearly to enforce an obligation to pay child support, and the order does, “on its face,” conform to the laws of the issuing jurisdiction. Accordingly, the order satisfies the criteria of POMS GN 02410.210.

Discussion

The Social Security Act generally precludes the assignment, attachment, or garnishment of money paid or payable pursuant to Title II of the Act. See 42 U.S.C. § 407(a). However, an exception exists for money due or payable to an individual when a state agency administering a Part IV-D program2 seeks withholding of payment to enforce the legal obligation of the individual to provide child support. See 42 U.S.C. § 659(a). The United States is relieved from liability for payment to any individual “pursuant to legal process regular on its face” if the payment is made in accordance with the requirements of 42 U.S.C. § 659 and the regulations issued to carry out section 659. See 42 U.S.C. § 659(f)(1). “Legal process” is defined in pertinent part as “any writ, order, summons, or other similar process in the nature of garnishment (A) which is issued by (i) a court or an administrative agency of competent jurisdiction in any State, territory, or possession of the United States… (B) which is directed to, and the purpose of which is to compel, a governmental entity which holds moneys which are otherwise payable to an individual to make a payment from the moneys to another party in order to satisfy a legal obligation of the individual to provide child support or make alimony payments.” 42 U.S.C. § 659(i)(5). The implementing regulations require federal agencies to comply with such legal process unless “[i]t does not, on its face, conform to the laws of the jurisdiction from which it was issued…”. See 5 C.F.R. § 581.305(a)(1). 3

The Agency’s procedures for processing garnishment orders are set forth at POMS GN 02410.210. As relevant here, the policy instructs that the garnishment order should be reviewed to determine “if the order is clearly to enforce, modify, or terminate an obligation to pay child support or alimony.” See POMS GN 02410.210.A.3.a. Assuming the order is clearly to enforce, modify, or terminate an obligation to pay child support or alimony, the order must be assessed to determine whether the order “‘on its face’ conforms to the laws of the issuing jurisdiction.” See POMS GN 02410.210A.3.b.

A. The Probate Court Order is Clearly to Enforce an Obligation to Pay Child Support.

The Probate Court order of March 20, 2012, states that the “State of Connecticut IV-D Agency (Department of Social Services’ Bureau of Child Support Enforcement) previously filed a lien for overdue child support against Jeffrey ’ inheritance herein, which inheritance would include the prospective payment from the Social Security Administration. It is Ordered and Decreed that the Social Security Administration shall pay the remaining $4,516.10 of said $4,766.10 to the State of Connecticut IV-D Agency…”. The order clearly states that SSA is to make payment to enforce a lien that the Connecticut IV-D agency obtained for overdue child support. Thus, the order satisfies the first prong of POMS GN 02410.210.A.3.

B. The Probate Court Order “On its Face” Conforms to the Laws of Connecticut.

To satisfy the requirements of POMS GN 02410.210A.3.b, the order must conform, “on its face” to the laws of Connecticut. The Supreme Court has provided significant guidance on the meaning of the phrase “on its face” in this context. See U.S. v. Morton, 467 U.S. 822 (1984). In the M~ case, the U.S. Air Force complied with a duly served writ of garnishment issued by an Alabama state court, ordering that the wages of an Air Force colonel be garnished to satisfy court ordered alimony and child support. M~, 467 U.S. at 824. Colonel M~ sued the federal government to recover the garnished wages, arguing that since he was stationed in Alaska at the time the garnishment order was issued, the Alabama state court did not have personal jurisdiction over him, and thus, the writ of garnishment did not constitute “legal process valid on its face.” Id. at 825-27. The Court unanimously rejected the argument that the government had a duty to inquire into whether the court issuing the garnishment order had personal jurisdiction over the obligor who owed past due child support. See M~, 467 U.S. at 828-36. The Court cited with approval an opinion by the Comptroller General that explained:

The inquiry into whether an order is valid on its face is an examination of the procedural aspects of the legal process involved, not the substantive issues. Whether a procedure conforms or is regular ‘on its face’ means just that. Facial validity of a writ need not be determined ‘upon the basis of scrutiny by a trained legal mind,’ nor is facial validity to be judged in light of facts outside the writ’s provisions which the person executing the writ may know. M~, 467 U.S. at 829 n.10 (quoting In re M~, 61 Comp. Gen. 229, 230-231 (1982)).

The Supreme Court did explain that to be valid, the order would need to be issued by a court “with subject-matter jurisdiction to issue such orders.” M~, 467 U.S. at 836. The U.S. Court of Claims provided additional guidance on the necessary inquiry to determine whether an order is valid “on its face.” See Millard v. U.S., 16 Cl. Ct. 485, 489 (Cl. Ct. 1989), aff’d 916 F.2d 1 (Fed. Cir. 1990), cert denied 500 U.S. 916 (1991). As the M~ court explained, “‘regular on its face,’ means nothing more than what it says: legal process whose validity, facially judged, appears to evidence a legitimate exercise of jurisdiction on the part of the issuing authority. Assessed against this standard then, the question is not whether there are infirmities underlying the garnishment order, … rather, the question is whether the order shows anything on its face that provides reasonable notice that it was issued without authority of law.” M~, 16 Cl. Ct. at 489. As explained below, the Probate Court’s order does not show anything on its face that provides reasonable notice that it was issued without authority of law. Id. Thus, the order “on its face” complies with the law of the issuing jurisdiction, satisfying the requirements of POMS GN 02410.210.3.b.

The Probate Court order of March 20, 2012, dictates that SSA is to pay the State of Connecticut IV-D agency to enforce a lien filed by the IV-D agency (the Bureau of Child Support Enforcement). In Connecticut, probate courts are courts of limited jurisdiction, and have authority only as provided by statute. See In re Adoption of Baby Z., 724 A.2d 1035, 1042-46 (Conn. 1999). The Probate Court has the power to determine title or rights of possession in any property that constitutes a decedent’s estate, and to make any lawful orders or decrees to carry into effect the power and jurisdiction conferred on the probate courts by the laws of Connecticut. See Conn. Gen. Stat. Ann. § 45a-98(a)(3), (7). The Probate Court explained in its order that SSA owed an underpayment of $4,766.10 to the estate of James , and that this overpayment was part of the inheritance of the decedent’s son, Jeffrey . Further, the Probate Court explained that the State of Connecticut IV-D agency had obtained a lien for overdue child support against Jeffrey ’s inheritance. The Probate Court therefore ordered that SSA pay $4,516.10 of the $4,766.10 to the State of Connecticut IV-D agency. As the Probate Court had the power to determine rights of possession to the property that was part of the decedent’s estate, and to make any lawful orders or decrees to carry that power into effect, the order, on its face, was valid. See Conn. Gen. Stat. Ann. § 45a-98(a)(3), (7); M~, 467 U.S. at 836; M~, 16 Cl. Ct. at 489.

One might argue that the Probate Court’s order was facially invalid, because as a court of limited authority, the Probate Court lacked jurisdiction to issue a child support order. This interpretation would emphasize that the statutory grant of jurisdictional authority for the probate courts does not authorize the probate courts to address or issue child support orders. See Conn. Gen. Stat. Ann. § 45a-98. Thus, the validity of the order would turn on whether the Probate Court issued the order under the statutory provision authorizing the Probate Court to make any lawful orders or decrees to carry its power into effect. See Conn. Gen. Stat. Ann. § 45a-98. The Probate Court explained in its order that the Bureau of Child Support Enforcement had previously filed a lien for overdue child support against Jeffrey ’ inheritance. However, the mere filing of the lien does not vest the Probate Court with authority to order assignment of the underpayment to the State of Connecticut. Connecticut law provides that payment of past due child support may be enforced by a lien obtained by the state on any property that a person owing past-due child support has an interest in when several procedures are satisfied. 4 See Conn. Gen. Stat. Ann. § 52-362d(a). The face of the Probate Court’s order is silent as to whether the IV-D agency performed the final step necessary to obtain payment of the lien. Arguably, this could support a finding that the order was not valid “on its face.”

However, such an interpretation would contravene the Supreme Court’s guidance in M~ that the “‘[f]acial validity of a writ need not be determined ‘upon the basis of scrutiny by a trained legal mind,’ nor is facial validity to be judged in light of facts outside the writ’s provisions which the person executing the writ may know.’” See M~, 467 U.S. at 829 n.10 (quoting M~, 61 Comp. Gen. at 230-31). This interpretation would require investigation into facts outside of the order’s provisions, as well as scrutiny by a trained legal mind. The M~ decision as well as the M~ decision indicate that such a probing search is unnecessary. See id.; M~, 16 Cl. Ct. at 489 (“the question is not whether there are infirmities underlying the garnishment order… rather, the question is whether the order shows anything on its face that provides reasonable notice that it was issued without authority of law”). Here, the Probate Court had subject matter jurisdiction to issue orders determining rights of possession to the property that was part of the decedent’s estate and to make any lawful orders or decrees to carry that power into effect. See Conn. Gen. Stat. Ann. § 45a-98(a)(3), (7). Further, the IV-D agency had power to collect the property subject to the lien. Conn. Gen. Stat. Ann. § 52-362d. The Probate Court’s order of March 20, 2012, conforms to the laws of Connecticut “on its face.”

Because the Probate Court’s order is clearly an order to enforce an obligation to pay child support, and conforms to the laws of Connecticut “on its face,” the Probate Court’s order of March 20, 2012, satisfies the criteria of POMS GN 02410.210.


Footnotes:

[1]

“IV-D agency” refers to the Connecticut state agency established to administer and supervise the state’s obligations under part D of title IV of the Social Security Act. See Conn. Gen. Stat. Ann. § 17b-179(a) (West 2012); Conn. Agencies Regs. § 17b-179(a)-1a(12); see also 42 U.S.C. §§ 651-669b. In Connecticut, the “IV-D agency” is the Bureau of Child Support Enforcement. Conn. Gen. Stat. Ann. § 17b-179(a). Part IV-D of the Social Security Act includes statutorily prescribed procedures that states were required to implement to increase the effectiveness of child support enforcement. See 42 U.S.C. § 666.

[2]

Part IV-D of the Social Security Act required states to implement laws requiring the use of procedures to increase the effectiveness of the child support enforcement program that the state administers under Part IV-D. See 42 U.S.C. §§ 654(20)(A), 666. In response, Connecticut created the Bureau of Child Support Enforcement, which is tasked with “development and implementation of all child support services, including the administration of withholding of earnings, in accordance with the provisions of Title IV-D of the Social Security Act, as amended.” See Conn. Gen. Stat. Ann. § 17b-179 (West 2012); see also Beasley v. Harris, 671 F. Supp. 911, 913-14 (D. Conn. 1987) (describing statutory history).

[3]

Four other exceptions exist to the general directive that governmental entities must comply with legal process, none of which is applicable here. See 5 C.F.R. § 581.305(a)(2)-(5).

[4]

The state obtains a lien when: (1) the Superior Court or a family magistrate issues an order for support of a minor child; (2) payments have been ordered to be made to the state acting through the IV-D agency; and (3) the person owes past-due support in the amount of five hundred dollars or more. See Conn. Gen. Stat. Ann. § 52-362d(a). The state has to secure the lien pursuant to the procedures contained in the general statutes applicable to the type of property to be secured. Id. When the obligor owes overdue child support in an amount greater than $500, the IV-D agency may notify any person with custody, control of, or authority to distribute any amounts due to the obligor, and once that notice is received, the person must withhold delivery or distribution of the property to the obligor. Id. at 52-362d(d). The Probate Court’s order of March 20, 2012, notes that such a lien was filed on Jeffrey ’ inheritance. Thus, it appears that the order complies with the preliminary requirements to enforce the withholding of payments owed to Jeffrey pursuant to the state’s lien for overdue child support. Id. However, under Connecticut law, that lien only required the Probate Court to withhold delivery or distribution of the property. Id. For the IV-D agency to lawfully collect payment of the property subject to the lien, it had to deliver an additional notice to the Probate Court. See Conn. Gen. Stat. Ann. § 52-362d(e). Specifically, the IV-D agency had to notify the Probate Court either: (1) that the obligor’s time for requesting a hearing had expired, and thus the Probate Court had to pay or deliver the withheld property to the state; (2) that the obligor had paid the overdue support, and thus, the Probate Court had to release or distribute the property to the obligor as appropriate; or (3) the Probate Court had to take whatever action was ordered by a hearing officer or court. Id. ---------------


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PR 04015.008 - Connecticut - 11/13/2012
Batch run: 11/13/2012
Rev:11/13/2012