TN 14 (06-12)

PR 04505.007 Colorado

A. PR 12–108 Douglas Garnishment Case

DATE: May 31, 2012

1. SYLLABUS

Regional Consul has been asked whether the agency may honor a Writ of Continuing Garnishment issued by the Denver District Court and served by the judgment creditor’s attorney via email and Federal Express on the Colorado Springs Field Office. Also, it was asked whether the agency may make payments directly to the judgment creditor’s attorney.

The writ does not constitute legal process, and service on the agency was not proper under state law. If, the writ were enforceable, Colorado law would permit payments directly to the judgment creditor’s attorney.

2. OPINION

Questions Presented

You asked whether the agency may honor a Writ of Continuing Garnishment issued by the Denver District Court and served by the judgment creditor’s attorney via email and Federal Express on the Colorado Springs Field Office. If so, you asked whether the agency may make payments directly to the judgment creditor’s attorney.

Short Answer

No. The agency may not honor the writ because it does not constitute legal process, and service on the agency was not proper under state law. If, however, the agency subsequently receives proper service of the writ and evidence that it is to satisfy the judgment debtor’s legal obligation to provide support, the agency may honor the writ and make payments directly to the judgment creditor’s attorney.

Background

On October 24, 2011, the Denver District Court issued a Writ of Continuing Garnishment. The writ directed the agency to pay any nonexempt earnings to the judgment creditor’s attorney to satisfy a judgment for $129,581.78 entered against the judgment debtor, Douglas, in August 2011,1 plus interest of $1,732.49 and taxable court costs of $123.00, for a “Principal Balance/Total Amount Due and Owing” of $131,437.07. The writ does not state that it is a garnishment for child support or alimony or describe the nature of the underlying judgment.

The judgment creditor’s attorney initially served the writ on the agency by emailing a copy of it to the Colorado Springs Field Office. The attorney also mailed (via Federal Express) a certified copy of the writ and of a Support Order to the field office. The Support Order directs the respondent (Douglas) to pay current support in the amount of $741.83, plus $100 to satisfy child support arrears of $1,048.36, as of May 15, 2003, for a total payment of $841.83 per month.

DICUSSION

The Agency May Not Honor the Writ; It Is Not Legal Process and Service Was Not Proper

As you know, Social Security Title II benefits may be garnished to enforce an individual's legal obligation to provide child support or alimony. See 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 02410.200(A). The agency must comply with legal process, defined as “any writ, order, summons, notice to withhold income . . . or other similar process in the nature of garnishment”; directed to a governmental entity to compel it to make a payment, from moneys otherwise payable to an individual to another party, in order to satisfy the individual’s legal obligation to provide child support or alimony; and 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 section 466(b) of the Social Security Act. See 42 U.S.C. § 659(i)(5); 5 C.F.R. § 581.102(f); POMS GN 02410.200(B).

Consistent with the definition of legal process, the writ is directed to the agency to compel it to make a payment from moneys otherwise payable to the judgment debtor to the judgment creditor, and a court of competent jurisdiction issued the writ. However, the agency has not received sufficient evidence that the writ is to satisfy the judgment debtor’s legal obligation to provide child support or alimony. The writ does not state that it is a garnishment for support or that the underlying judgment is to enforce a support obligation. In fact, the agency has yet to receive a copy of the underlying judgment to determine its nature, and the writ does not refer to the Support Order. Thus, even after receiving a certified copy of the Support Order, the agency must infer the purpose of the writ. We do not believe the evidence the agency has received to date is sufficient to show the writ is to satisfy the judgment debtor’s legal obligation to provide child support or alimony. Therefore, we conclude the writ does not constitute legal process.2

Further, even assuming the writ constitutes legal process, it must be facially valid, i.e., it must conform, on its face, to the laws of the issuing jurisdiction, and service must be in accordance with the law of the issuing state. See 5 C.F.R. §§ 581.202, 581.305(a)(1); POMS GN 02410.205, 02410.210(A)(3)(b). While the writ appears to be facially valid, 3 Colorado law requires personal service (hand delivery) of writs of garnishment by any person age 18 or older who is not a party to the action. See Colo. R. Civ. P. 4(d) (By whom Served), (e) (Personal Service); see also id. 103. Service by email or by mail (Federal Express) does not constitute personal service. Therefore, the agency may not enforce the writ, even if we had determined it constitutes legal process, and should return the writ to the issuing court. See POMS GN 02410.205(B)(1).

Federal Garnishment Law and Colorado Law Permit Payment to the Judgment Creditor’s Attorney

As indicated above, the agency must honor legal process, which is defined, in part, as a garnishment order directed to SSA “to make payment from moneys otherwise payable to an individual, to another party” to satisfy a support or alimony obligation. 5 C.F.R. § 581.102(f). A “party” is defined as “the person or persons to whom alimony and/or child support payments should be made . . . .” Id. § 581.102(j). We believe that, to decide “the person or persons to whom alimony and/or child support should be made” requires a consideration of the relevant state law.

As noted above, under Colorado law, a writ of garnishment for support is the exclusive procedure for withholding the earnings of a judgment debtor for payment of a judgment debt for child support or alimony arrearages, and the writ must be in the form and content of Form 31. See Colo. R. Civ. P. 103 §§ 3(a)(1), (b). Writs of garnishment for support do not explicitly authorize payment to the judgment creditor’s attorney. They authorize payment “to the family support registry, the clerk of the court which issued such writ, or to the judgment creditor . . . .” Colo. R. Civ. P. 103 § 3(g)(2). However, we believe that Colorado law permits payment of support monies to a judgment creditor’s attorney because the attorney is an agent for the creditor.

“The attorney-client relationship is that of principal and agent.” Siener v. Zeff, 194 P.3d 467, 471 (Colo. App. 2008) (citation omitted). Therefore, in instances where the court issues a writ of continuing garnishment to enforce a support obligation and orders payments to the judgment creditor, the agency may make the payments directly to his/her attorney. Consistent with this conclusion, Form 31 (Writ of Garnishment for Support) requires the person completing the form to provide either the judgment creditor’s name, address, phone number, fax number, and email or that of his/her attorney in the form’s caption. This suggests further that a garnishee may make payments directly to the judgment creditor or to his/her attorney.

Moreover, the Colorado Child Support Collection Consumer Protection Act allows a judgment creditor’s attorney to redirect payments “ordered to be made through a central payment registry” to the attorney. See Colo. Rev. Stat. Ann. §§ 12-14.1-104(c) (prohibiting a “collector” from attempting to redirect payments ordered to be made through a central payment registry), 12-14.1-102(b)(III) (noting the definition of “collector” does not include an attorney licensed to practice law in the state of Colorado). Consequently, if the court had issued the correct writ (Form 31) and checked the box directing payments to the Family Support Registry, rather than to the judgment creditor, Colorado law would appear to permit the agency to make payments directly to the judgment creditor’s attorney.4

CONCLUSION

The agency may not honor the writ because it does not constitute legal process, and service on the agency was not proper under state law. If, however, the writ were enforceable, Colorado law would permit the agency to make payments directly to the judgment creditor’s attorney.

John Jay Lee
Regional Chief Counsel, Region VIII
By _______________________
Yvette G. Keesee
Assistant Regional Counsel

B. PR 06-033 Self-Completion of an Income Withholding Request for Alimony

DATE: December 13, 2005

1. SYLLABUS

Colorado law does not prohibit self-completion of a notice to withhold income for support. But to be valid, (1) the notice must be consistent with the underlying court order granting maintenance (alimony), (2) the notice to the Social Security Administration must comply with statutory requirements governing content of the notice, and (3) a certified copy of the court's support order must be attached. Interest may be charged on past-due maintenance payments.

2. OPINION

Issue

You requested an opinion on whether the Social Security Administration can honor an income withholding request for alimony, when the request appears to be self-completed and interest was added to the monthly alimony payments.

Short Answer

Colorado law does not prohibit self-completion of a notice to withhold income for support. But to be valid, (1) the notice must be consistent with the underlying court order granting maintenance (alimony), (2) the notice to the Social Security Administration must comply with statutory requirements governing content of the notice, and (3) a certified copy of the court's support order must be attached. Interest may be charged on past-due maintenance payments.

FACTS

The facts you have provided show that a Social Security office in the Chicago Region was presented with a benefits withholding request from Colorado that appeared partially self-completed and included eight percent interest on each monthly payment. A court order for alimony was submitted with the withholding request.

DICUSSION

In Colorado, maintenance may be "imposed by law or by order, decree, or judgment of any court, whether interlocutory or final, or whether incidental to an action for divorce, separation, separate maintenance or otherwise." This "duty of support" may also include "the duty to pay arrearages of support past-due and unpaid." Colorado allows for interest to be assessed against past-due maintenance payments, at present up to 12 percent. Once ordered, the party required to pay maintenance becomes the "obligor," and the party receiving maintenance is termed the "obligee." The obligee may enforce the maintenance order by having a portion of the obligor's Social Security benefits paid directly to him or her. This can be accomplished by two methods, garnishment and its close cousin, the income assignment.

Garnishment of wages and income assignments are easily distinguished. Garnishment is ordered by the court through a writ of garnishment. The writ is a formal legal document, generated solely by the court. We assume that a writ of garnishment was not the document presented to the Social Security office. If so, and it was established that the obligee (or any other person aside from the court) had completed the substantive terms for garnishment, it would be void.

Income assignment, however, is a less formal process. We assume that a partially self-completed notice to withhold income for support was the document presented to the Social Security office. In Colorado, once a court has entered the order for maintenance, "the obligee, the obligee's representative, or the delegate child support enforcement unit shall cause a notice of income assignment to be served immediately[.]" The "income assignment may be activated by the obligee, the obligee's representative, or the delegate child support enforcement unit by causing a notice to withhold income for support to be served upon the . . . payor of funds." Service of a notice to withhold income for support is accomplished by "first-class mail or by electronic service, if such . . . payor of funds mutually agrees with the state child support enforcement agency to receive such income assignments electronically."

The statute describing the information that must be contained in the notice to withhold income for support, Colo. Rev. Stat. Ann. § 14-14-111.5(4)(a)-(n) (2005), is extremely specific. A copy is attached to this memorandum. Generally stated, those requirements are:

  1. the name and social security number of the obligor;

  2. when withholding must begin;

  3. instructions concerning withholding;

  4. instructions for disbursing withheld amounts;

  5. penalties for failure to withhold;

  6. penalties for discriminating against the obligor;

  7. an employer's obligation to report cessation of the obligor's employment to the family support registry;

  8. the priority of the notice to withhold over other legal process;

  9. the fact that the notice to withhold cannot be terminated or modified except by written notice from the court, the child support enforcement unit, or the obligee or his/her representative;

  10. a description of income;

  11. a statement that Colorado payors of funds must comply;

  12. that the payor must provide the obligor with a copy of the notice to withhold if so indicated in the notice to withhold; and

  13. penalties for fraudulent submission of a notice to withhold.

Unless the obligee is receiving child support enforcement services from a delegate child support enforcement unit, a certified copy of the support order must be attached to the notice to withhold income for support. Once activated, the "income assignment shall be a continuing income assignment and shall remain in effect and shall be binding upon any . . . payor of funds upon whom it is served until further notice from the obligee, the obligee's representative, the delegate child support enforcement unit, or the court." A payor of funds that complies with a notice of income assignment issued pursuant to the statute cannot by held liable to the obligor for wrongful withholding, but a payor of funds that fails to comply with such notice of income assignment may be held liable to the obligee or in contempt of court. Any person submitting a fraudulent notice of income assignment is subject to fine, court costs, and attorney's fees.

CONCLUSION

Accordingly, we advise that:

(1) Under Colorado law, an obligee is specifically authorized by statute to "cause a notice of income assignment to be served immediately" on a payor of funds upon entry of an order for maintenance. Self-completion of the notice of income assignment is not prohibited. A notice of income assignment is valid if it contains the information required by statute and is consistent with the court's order for maintenance, which should be attached if served by the obligee or his/her representative.

Colorado law authorizes assessment of interest on past-due maintenance payments of up to 12 percent. The obligee could thus add interest to past-due maintenance payments in the notice of income assignment.

Deana R. Ertl-Lombardi
Regional Chief Counsel, Region VIII
By _______________________
Wayne M. Stanley
Assistant Regional Counsel

C. PR 00-087 Income Assignment for Child Support Debt and Maintenance - Colorado

DATE: February 23, 1999

1. SYLLABUS

Under Colorado law, a court may order an "income assignment" for child support or maintenance. An income assignment order for garnishment of title II benefits is continuous and remains in effect until further notice from the obligee. Under Colorado law, a "writ of garnishment" may also be used to collect arrearages for child support, for maintenance when combined with child support, for child support debts, or for maintenance. A writ of garnishment is continuing until the judgment is satisfied or the garnishment is released by the court or in writing by the judgment creditor.

2. OPINION

You have requested our opinion whether an income assignment against Jesse , SSN ~, should be treated as an order for continuous withholding of a portion of Jesse's monthly Social Security benefits. As discussed below, we believe that under current Colorado law, the income assignment is continuous and remains in effect until further notice.

Based on your documentation, the facts of this situation appear to be as follows. SSA was served with a "Notice Of Income Assignment" against the obligor, Jesse, directing SSA to deduct from Jesse's monthly Social Security benefits $161.25 per month for payment toward a child support debt and $409.00 per month for maintenance, for a total of $570.25 to be withheld monthly. SSA is to directly pay the amount withheld from Jesse's benefits to the obligee, Theresa . The notice further states that Theresa will receive the total amount withheld for 24 months and, thereafter, will receive payments in the amount of $409.00 per month until the death of Jesse.

Under section 207(a) of the Social Security Act (the Act), 42 U.S.C 407(a), [t]he right of any person to any future payment under this title 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, or to the operation of any bankruptcy or insolvency law.

However, section 207(b), 42 U.S.C 407(b), adds that "[n]o other provision of law, enacted before, on, or after the date of the enactment of this section, 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.) As pertinent here, section 459 of the Act, 42 U.S.C. § 659, contains an express exception to section 207 so that Title II benefits are subject to legal process brought by an individual for the enforcement of a legal obligation to provide child support or make alimony payments. See also POMS GN 02410.001, GN 02410.200.

In 1996, the Colorado General Assembly enacted Colo. Rev. Stat. (C.R.S.) § 14-14-111.5 (Income assignments for child support or maintenance) "to simplify, streamline, and clarify the existing laws relating to wage assignments previously provided for in [§] 14-14-107 . . ." C.R.S. § 14-14-111.5(1) (copy attached). Section 14-14-107 originally applied only to "child support, and maintenance where combined with child support." In re Marriage of C~, 831 P.2d 913, 916 (Colo. App. 1992) (copy attached). However, it was amended in 1987 to apply also to maintenance alone. Id.

Thus, under current Colorado law, a court may order an "income assignment" for child support or maintenance. C.R.S. § 14-14-111.5(2)(f). Colorado law further provides that "an income assignment shall be a continuing income assignment and shall remain in effect and shall be binding upon any employer, trustee, or other payor of funds upon whom it is served until further notice from the obligee, the obligee's representative, the delegate child support enforcement unit, or the court." C.R.S. § 14-14-111.5(5) (copy attached). In sum, the income assignment against Jesse should be treated as an order for continuous withholding.

In Colorado, a "writ of garnishment" may also be used to collect "arrearages for child support, for maintenance when combined with child support, for child supports debts, or for maintenance . . ." C.R.S. § 14-14-105(1) (emphasis added) (copy attached). A writ of garnishment is continuing "until such judgment is satisfied or the garnishment is released by the court or in writing by the judgment creditor." Id. In light of current Colorado law, POMS GN 02410.265 is outdated and should be corrected to state "Continuous" under the heading LENGTH OF GARNISHMENT.


Footnotes:

[1]

According to the writ, Douglas’ last known address was in Fort Worth, Texas. In Colorado, there are five types of

[2]

In Colorado, there are five types of writs. See Colo. R. Civ. P. 103. The writ of garnishment for support is “the exclusive procedure for withholding the earnings of a judgment debtor for payment of a judgment debt for child support arrearages . . . .” Id. § 3(a)(1). A writ of garnishment for support “shall be in the form and content of . . . Form 31 [of the Colorado Rules of Civil Procedure].” Id. § 3(b). Here, however, the court issued a writ of continuing garnishment in the form and content of Form 26, which unlike Form 31, does not include the word “support” in the heading or require the person completing the form to specify whether the underlying judgment is for child support, spousal maintenance or both. Nonetheless, if we had received a copy of the August 2011 judgment and determined the court issued it to enforce the judgment debtor’s support obligation, we would have concluded the writ constitutes legal process, despite the court’s use of the incorrect form. See POMS GN 02410.210(A)(3)(a) (“Determine if the order is clearly to enforce, modify, or terminate an obligation to pay child support or alimony. If it is not clear, immediately contact the garnisher, the garnisher’s representative or the issuing court to get a certified copy of the order for child support or alimony.”); cf. Memorandum, from Reg. Chief Counsel, Denver, to Ass’t Reg. Comm.-MOS, Denver, Legality of Writ of Continuing Garnishment (Aug. 11, 2005) (citing to laws governing writs of garnishment for support in advising the agency to honor a writ of continuing garnishment issued to enforce a support obligation).

[3]

See Millard v. U.S., 16 Cl. Ct. 485, 489 (Cl. Ct. 1989) (concluding the order was regular on its face where it recited names of the parties, basis for the action being taken, and amounts to be withheld; and bore seal of the issuing court, stamped signature of judge, and attestation by clerk of the court), aff’d, 916 F.2d 1 (Fed. Cir. 1990).

[4]

Here, the court provided for interest, as well as court costs, and included these amounts in the writ, which we interpret as the court expressly providing for the inclusion of interest as, rather than in addition, to child support. See 5 C.F.R. §§ 581.307(a)(providing that for interest to be included in a garnished amount, the legal process must expressly provide for the inclusion of interest as (rather than in addition to) child support) & (b) (providing that court must have authority to include interest in child support award). Colorado law permits the award of interest in the case of delinquent child support payments and of court costs. See Colo. Rev. Stat. Ann. §§ 14-14-106 (permitting award of interest at a rate that is 4% greater than the ordinary statutory rate permitted under § 5-12-101 for delinquent support payments),13-16-104 (permitting recovery of taxable court costs “together with the debt or damages, by execution” ); see also POMS GN 02410.200(E) (providing that child support may include interest if it is expressly made recoverable under a garnishment order issued by a court in accordance with applicable state law). Therefore, if the writ were enforceable, the interest and taxable costs provided in the writ would be recoverable.


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PR 04505.007 - Colorado - 06/18/2012
Batch run: 06/18/2012
Rev:06/18/2012