TN 7 (08-09)
PR 04015.025 Michigan
A. PR 09-159 Request for Opinion on Child Support Garnishment—REPLY Our Ref: 09-0023
DATE: DATE: August 24, 2009
The garnishment of SSA benefits for the purposes of child support or alimony is established by a properly served order to garnish [as represented by an income withholding order (IWO)] from a court of proper jurisdiction. As the garnishment is an order of the court and not a determination of the agency, there are no appeal options to SSA for garnishment issues. Any questions or explanations on the order to garnish must be directed to the court of proper jurisdiction.
Any action to stop the garnishment of SSA benefits can only be made in response to a properly served order from the court of jurisdiction for the garnishment.
The garnishment of SSA benefits for the purposes of child support or alimony is established by a properly served order to garnish [as represented by an income withholding order (IWO)] from a court of proper jurisdiction. As the garnishment is an order of the court and not a determination of the agency, there are no appeal options to SSA for garnishment issues. Any questions or explanations on the order to garnish must be directed to the court of proper jurisdiction. Any action to stop the garnishment of SSA benefits can only be made in response to a properly served order from the court of jurisdiction for the garnishment.
In March 2009, the Oakland County, Michigan, Friend of the Court issued an income withholding order (IWO) directed to SSA and seeking to garnish Mr. S~ retirement benefits. The IWO sought $438.50 per month from Mr. S~ benefits to cover an arrearage in child support payments for Mr. S~ son, Jonathan. In accordance with the IWO, SSA has apparently been garnishing Mr. S~ benefits.
The IWO lists an Oakland County Friend of the Court contact number for further information, and, through that number, we were told that Mr. S~ is over $40,000 in arrears with child support payments.
In March 2007, Mr. S~ appeared at two criminal probable cause hearings in Oakland Michigan. The subject of the hearings were whether there was probable cause to find that Mr. S~ was guilty of felony non-support (of his child) for the period November 1999 through June 2002. As part of the prosecutor’s case, a child support account specialist with the Oakland County Friend of Court testified as to Mr. S~ child support arrearages. At the conclusion of the hearings, the state judge dismissed the charge, finding that the records with respect to Mr. S~ support payments from the Oakland County Friend of the Court did not appear to be correct and contained contradictory amounts.
Based on the hearing testimony and the decision by the judge in the criminal non-support hearings, Mr. S~ has asked the agency to terminate garnishment of his benefits.
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); POMS GN 02410.200A. Specifically, the Agency is required to comply with "legal process," which is defined as "any writ, order, summons, or other similar process in the nature of garnishment" and which is issued by (1) a court of competent jurisdiction (domestic or foreign), (2) an authorized official pursuant to a court order or pursuant to state or local law, or (3) a State agency that is authorized to issue income withholding notices pursuant to state or local law or pursuant to the requirements of 42 U.S.C. § 666(b). 42 U.S.C. § 659(i)(5); 5 C.F.R. § 581.102(f); POMS GN 02410.200B.
Here, the IWO issued by the Oakland County Friend of the Court constitutes “legal process.” The IWO is clearly a garnishment order directed to SSA, and the Oakland County Friend of Court is a state agency that has statutory authority to issue IWOs. See Mich. Comp. Laws §§ 552.511(1) (authorizing the Friend of the Court office to initiate one or more support enforcement measures under the support and parenting time enforcement act where an arrearage has developed); 552.607 (providing for the issuance of IWOs by the Friend of the Court under the support and parenting time enforcement act). Thus, SSA is required to comply with the IWO. 42 U.S.C. § 659(i)(5); 5 C.F.R. § 581.102(f); POMS GN 02410.200B.
The outcome in Mr. S~ criminal probable cause hearing does not affect SSA’s obligation to comply with the IWO since the law discussed above does not give SSA any authority to consider whether the support obligation underlying the IWO is accurate or valid. This issue is addressed by POMS GN 02410.225(2):
Beneficiaries do not have any right of appeal to SSA regarding implementation of garnishment orders. They can appeal to the issuing court to dismiss or modify the order. An appeal by the beneficiary may result in a new court order superseding the previous order which, when served on SSA, requires adjustments to the garnishment withholding. If a garnished beneficiary notifies SSA that he/she intends to appeal the garnishment order, [him or her] that:
--The appeal alone might not cause any change in the withholding.
--SSA will comply with any new court order issued as a result of the appeal.
If a copy of an appeal is received, consult either the clerk of the court receiving the appeal or submit it to the regional office for submittal to the Regional OGC for instructions as to compliance with the original garnishment order while the appeal is pending.
POMS GN 02410.225(2). The dismissal of the criminal action did not directly impact the validity of the garnishment order. And the mere fact that there was insufficient evidence to proceed against Mr. S~ criminally does not mean that he is not civilly liable for the support.
For the reasons discussed above, we conclude that continued garnishment of Mr. S~ retirement benefits is proper notwithstanding the outcome of his criminal non-support case.
Donna L. C~
Regional Chief Counsel, Region V
Assistant Regional Counsel