TN 13 (06-12)

PR 04015.021 Louisiana

A. PR 12-104 Notice of an Order to Withhold Income for Child Support issued by SupportKids, Inc/Child Support Enforcement on Romalis (SSN~)

DATE: October 14, 2005

1. SYLLABUS

The Notice of an Order to Withhold Income for Child Support issued by Support Kids/Child Support Enforcement (CSE) does not constitute appropriate "legal process" to implement garnishment withholding.

The withholding order was issued by a non-governmental corporate entity, rather than a court, an authorized official pursuant to a state or local law, or an authorized state agency. In addition, CSE sought to modify the payee which is contrary to Louisiana State law. Accordingly, this document does not constitute appropriate “legal process” to implement garnishment withholding.

2. OPINION

This memorandum is in response to your request for an opinion as to whether the Social Security Administration (Agency) could comply with a Notice of an Order to Withhold Income for Child Support issued by Support Kids/Child Support Enforcement (CSE) in Austin, Texas on Romalis Gordon's Title II benefits. We believe that the Agency cannot honor the Notice issued by CSE.

According to the information provided to us, the Agency received a document entitled "Notice of an Order to Withhold Income for Child Support," dated July 21, 2005, and submitted by CSE. CSE is a non-governmental, private child-support collection agency located in Austin, Texas. The Notice states that the Agency is to withhold $173.33 per month from Romalis income (benefits) for past due child support and remit that amount to Faye , in care of CSE in Austin, Texas. The Notice states that it is based upon a support or withholding order from a Louisiana district court, issued in Faye Gordon v. Romalis Gordon, No. 12,821, District Court, Parish of St. James. The documents provided in the Gordon v. Gordon case from the district court include a Judgment of Divorce, dated July 29, 1998, and an Income Assignment Order for support, issued by the St. James District Court on January 27, 1987. The Income Assignment Order states that the payor shall withhold $40.00 per week, or fifty per cent, whichever is less, from Romalis disposable income. The Income Assignment Order further states that the withheld amount shall be forwarded to the Louisiana Support Enforcement Office in Baton Rouge, Louisiana.

As you are aware, Social Security Title II benefits may be garnished to enforce an individual’s legal obligation to provide child support. 42 U.S.C. § 659(a), (h)(1)(A)(ii)(I); 5 C.F.R. § 581.103(c)(1); 20 C.F.R. § 404.1820(b); Program Operations Manual System (POMS) GN 02410.200A. Garnishment is defined as a type of legal process by which benefits are taken to pay a beneficiary’s child support obligation to a third party. POMS GN 02410.001B. Romalis is currently receiving Title II benefits, and thus, his benefits are subject to Louisiana laws governing child support garnishment orders.

However, the Agency will withhold benefits for child support purposes only when it receives legal process that is clearly issued to enforce an obligation to pay child support and that, on its face, conforms to the laws of the jurisdiction from which it was issued. 42 U.S.C. § 659(a), (h)(1)(A)(ii)(I); 5 C.F.R. § 581.103(c)(1); 20 C.F.R. § 404.1820(b). Legal process is defined as “any writ, order, summons, or other similar process in the nature of garnishment,” directed to a governmental entity, and issued by (1) a court of competent jurisdiction, (2) an authorized official pursuant to an order of a court of competent jurisdiction or pursuant to state or local law, or (3) a state agency that is authorized to issue income withholding notices. 42 U.S.C. § 659(i)(5); 5 C.F.R. § 581.102(f).

In this case, the Notice of an Order to Withhold Income for Child Support issued by CSE does not fall within any of the above three categories since it was issued by a non-governmental corporate entity, rather than a court, an authorized official pursuant to a state or local law, or an authorized state agency. Accordingly, this document does not constitute appropriate “legal process” to implement garnishment withholding.

Further, the Notice issued by CSE modifies the payee in the Income Assignment Order issued by the St. James Parish District Court. The Notice issued by CSE provides that the Agency should remit the garnished amount to Faye , in care of CSE in Austin, Texas. In contrast, the Income Assignment Order states that the garnished amount shall be forwarded to the Louisiana Support Enforcement Office in Baton Rouge, Louisiana.

Louisiana law only appears to provide for the right to modify the amount of income to be garnished and does not provide a right to modify the payee. See State v. Brown, 782 So.2d 646 (La. App. 4 Cir. 2001); State v. Leslie, 761 So.2d 680 (La. App. 4 Cir.2000) (holding that once a court order establishes or modifies child support and orders an income assignment, the obligee acquires the right to continually modify the amount of income to be garnished subject to the fifty percent exemption without further court involvement). Hence, it would appear that, under Louisiana law, a court should endorse any modification regarding the payee in an income assignment order.

Accordingly, it is our opinion that the Notice of an Order to Withhold Income for Child Support issued by CSE does not constitute appropriate "legal process" to implement garnishment withholding, and any garnishment of Romalis Title II benefits for child support based upon the Notice issued by CSE would be prohibited by 42 U.S.C. § 407(a) 1 or any other provision of Federal law.

Very Truly Your

Tina M. Waddell

Regional Chief Counsel

By:_____________________

Carolyn Ebbers Whitson

Assistant Regional counsel


Footnotes:

[1]

Section 407(a), title 42, United States Code, provides that “[t]he right of any person to any future payment under [Title II] shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this [title] shall be subject to execution, levy, attachment, garnishment, or other legal process,” unless “[an]other provision of law” expressly provides for such collection.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1504015021
PR 04015.021 - Louisiana - 06/18/2012
Batch run: 06/18/2012
Rev:06/18/2012