Question Presented
You asked whether a document entitled “Order to Withhold” from the Kentucky Cabinet
for Health and Family Services, which was not specifically designated as a “garnishment”
order and which requested wage and asset information of the number holder, was sufficient
to enforce a garnishment of the number holder’s benefits.
Opinion
For the reasons set out below, the Order to Withhold from the Kentucky Cabinet for
Heath and Family Services is a valid State garnishment order to collect delinquent
child support payments from the number holder.
Background
According to the information provided to us, the Elizabethtown, Kentucky, Social Security
field office received an “Order to Withhold” from the Kentucky Cabinet for Health
and Family Services referencing Curtis, the number holder (NH). The order is dated
June 23, 2009, and is signed by Carolyn , a designee of the Secretary of the Kentucky
Cabinet for Health and Family Services. The order explains that NH is in arrears for
unpaid child support in the amount of $6,467.47 for the period from June 8, 2004,
through May 31, 2009. The order asks the Social Security Administration (SSA or Agency)
to answer by identifying any disposable earnings or liquid assets of NH of which the
Agency is in possession. The order states that fifty percent of any disposable earnings
must be withheld and/or one hundred percent of any liquid assets must be withheld
until the indebtedness is recovered. The order states that upon request, these withheld
assess must be delivered to the Cabinet of Health and Family Services. The order is
based on a court or administrative order that became final on May 17, 1996.
Discussion
The United States Supreme Court in Philpot v. Essex County Welfare Board, 409 U.S. 413, 415-17 (1973), stated unequivocally that section 207 of the Social
Security Act (Act) imposes a broad bar against the use of any legal process to reach
Social Security benefits. Under this provision,
(a) The 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.
(b) No 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. Act § 207.
However, through section 459 of the Act, Congress specifically referenced section
207(a) to create an exception under which the Government consents to garnishment of
Social Security benefits to collect child support and alimony. More specifically,
section 459 states that with respect to a notice to withhold income to enforce an
obligation of an individual to provide child support or alimony, SSA “shall be subject
to the same requirements as would apply if the entity were a private person, except
as otherwise provided in this section.” Act § 459(b). These requirements include not
only complying with the withhold requirements of garnishment orders, but also with
“any other legal process brought, by a State agency administering a program under a State plan approved under
this part or by an individual obligee, to enforce the legal obligation of the individual
to provide child support or alimony.” Act § 459(a) (emphasis added). The Act sets
out types of statutorily prescribed procedures each State must have in effect to increase
the effectiveness of the program which the State administers for child support enforcement.
Act § 466. That section includes procedures under which liens arise by operation of
law against real and personal property for amounts of overdue support owed by a noncustodial
parent who resides or owns property in the State. Act § 466(a)(4)(A).
Social Security benefits are subject to “legal process” brought through a State court
to enforce a legal obligation to provide child support or alimony. Policy Operations
Manual System (POMS) GN
02410.200(B); see also Act § 466 (setting out statutorily prescribed procedures to increase the effectiveness
of child support enforcement). The POMS define “legal process” as any writ, order,
summons, notice to withhold, or other similar process in the nature of garnishment.
Legal process may include, but is not limited to, an attachment, writ of execution,
income execution order, or wage assignment. Id. The legal process may be issued by a court of competent jurisdiction, an authorized
official pursuant to a court order or State or local law, or a State agency authorized
to issue income withholding notices pursuant to State or local law. Id.
The Secretary of the Kentucky Cabinet for Health and Family Services may collect delinquent
child support by issuing an order to withhold and deliver earnings or property of
any kind which belong to the debtor parent. Ky. Rev. Stat. Ann. § 405.470 (2009).
An order to withhold and deliver the assets of the debtor parent may be personally
served or mailed by certified mail to any person in possession or control of the debtor
parent’s property. Ky. Rev. Stat. Ann. § 405.480 (2009). The order must set out the
basis for, as well as the amount of the support debt. Id. Any person who is served with an order to withhold and deliver the debtor parent’s
property must answer the order within twenty days of receipt. Ky. Rev. Stat. Ann.
§ 405.490 (2009). The person in possession of the debtor parent’s property must withhold
the property in accordance with the Secretary’s instructions and deliver it to the
Cabinet. Id.
Here, the order to withhold from the Kentucky Cabinet for Health and Family Services
meets SSA’s definition of “legal process” brought by a State agency administering
a program under a State plan to enforce NH’s legal obligation to provide child support.
See Act §§ 459(a), 466; POMS GN 02410.200(B). Although the order does not specifically state that it is a garnishment order,
the order is a legal process in the nature of garnishment. See POMS GN 02410.200(B). The order seeks to recover unpaid child support from NH and was issued by the
Kentucky Cabinet for Health and Family Services in accordance with Kentucky Revised
Statute § 405.470, which authorizes the Kentucky Cabinet for Health and Family Services
to collect delinquent child support. See id. Because the order is a notice to withhold income or assets to enforce NH’s child
support obligation, SSA should process the order pursuant to its procedures for processing
garnishment orders. See Act § 459(a).
Conclusion
In sum, the Order to Withhold issued by the Kentucky Cabinet for Health and Family
Services is a valid order of garnishment for purposes of collecting child support
payments owed by NH. SSA should comply with the order. POMS GN 02410.210 sets out instructions for processing garnishment orders.
Mary A. Sloan
Regional Chief Counsel
By: ___________________________
Richard V. Blake
Assistant Regional Counsel