TN 21 (09-14)
PR 04505.037 North Dakota
A. PR 14-150 Garnishment – Daniel Case
DATE: August 18, 2014
The Income Withholding Order (IWO) for garnishment from the State of North Dakota was properly served and valid on its face. The legality or validity of the underlying support order issued by the Turtle Mountain Band of Chippewa Tribal Court, or the establishment of paternity, is immaterial to our requirement to garnish as directed by the IWO.
You have asked whether the agency should honor an Income Withholding for Support Notice, (Notice) served upon the Aberdeen, South Dakota Field Office on March 22, 2014 by North Dakota Child Support Enforcement Agency.
Yes. The agency was properly served with a valid Notice and is obligated to honor it and process the withholding request.
On March 22, 1014, the Aberdeen Field Office received an Original Income Withholding for Support Notice/Order from North Dakota Child Support Enforcement Agency. The Notice stated the name of the obligor (parent owing child support) Daniel and the name of the child to whom the child support obligation is assigned. The Notice seeks a deduction from Daniel’s income in the amount of “$729.00 Per Month” for both current child support and past-due child support arrears greater than 12 weeks. The Notice directed that payment should be sent to the North Dakota Child Support Enforcement Division. Daniel contacted the Aberdeen, South Dakota Field Office questioning the legality of the Notice based on his claim that paternity has never been proven and the garnishment order was issued from a Tribal Court.
In general terms, child support enforcement is governed by a number of federal and state laws that ensure interstate child support enforcement: the Uniform Interstate Family Support Act (UIFSA), enacted in all jurisdictions; the Full Faith and Credit for Child Support Orders Act (FFCCSOA); and the Uniform Enforcement of Foreign Judgments Act (UEFJA). The FFCCSOA and UIFSA interact together. The FFCCOA and UIFSA enables enforcement of child support obligations when the parties do not live in the same state or country and require states to cooperate with each other to establish and enforce child support orders. These federal statutes lay out jurisdictional requirements for state courts to recognize, enforce, and modify orders of sister states.
North Dakota Law
North Dakota’s version of the UIFSA (N.D. Cent. Code Chapter 14-12.2 – Uniform Interstate Family Support Act) gives the North Dakota support enforcement agency the power to use any administrative procedure authorized by the law of North Dakota to enforce a support order issued by a tribunal of another state. See N.D. Cent. Code § 1412.2-34. Pursuant to N.D. Cent. Code § 14-09-09.11, an income withholding order is an acceptable administrative method that may be used by the North Dakota support enforcement agency to enforce a judgment or order requiring payment of child support. “Tribunal” is defined as “court, administrative agency, or quasi-judicial entity authorized to establish, enforce, or modify support orders or to determine parentage” and “[s]tate” includes an Indian tribe. See N.D. Cent. Code § 14-12.2-01(22 and 8).
Further, N.D. Cent. Code § 14-09-09.13 requires that the parent who owes child support (obligor) be notified that the enforcement action (income withholding order) is being taken by the support enforcement agency. This notice provision provides the obligor with the notice of the enforcement action and the opportunity to receive a hearing upon request, to contest the action. Id. The obligor, upon receipt of the notice or order has 14 days to file a request for hearing to contest the validity of the order or notice. See N.D. Cent. Code § 14-09-09.14.
At the same time the above referenced process is occurring, the support enforcement agency may also serve upon an employer or income payer an income withholding order. See N.D. Cent. Code § 14-09-09.16(1). Service is proper if served by first-class mail or in another manner agreed to by the income payer. Id. The child support agency must also serve the obligor with a copy of the order/notice. Id.
The income withholding order served upon the obligor and the employer or payer, pursuant to N.D. Cent. Code § 14-09-09.15, must be in the following form: “issued in the name of the state of North Dakota in the standard format for notice of the order prescribed by the secretary of the United States department of health and human services under authority of 42 U.S.C. 666(b)(6)(A)(ii), contain only the information necessary for the income payer to comply with the income withholding order, and be directed to all current and subsequent income payers of the obligor.” Once properly served upon the payer (in this case SSA), it is binding until further notice from the state. Id.
Social Security benefits may be garnished to enforce an individual’s legal obligation to provide child support. See Social Security Act § 459(a) & (h)(1)(A)(ii)(I); 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 Support (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 Social Security Act § 466, 42 U.S.C. § 666; 5 C.F.R. § 581.102(f); POMS 02410.200(B). An Indian tribal court may be a court of competent jurisdiction. POMS GN 02410.200(B) (“A court of competent jurisdiction include[es] Indian tribal courts within any State, territory, or possession of the U.S. or the District of Columbia”).
In addition, a notice or order must be facially valid; that is, it must conform, on its face, to the laws of the issuing jurisdiction, and service of the decree on the agency must be proper. See 5 C.F.R. §§ 581.202, 581.305(a)(1); POMS GN 02410.205, GN 02410.210(A)(3)(b). Service of legal process that is regular on its face must be in accordance with the law of the issuing state. See Social Security Act § 466, 42 U.S.C. § 666; 5 C.F.R. § 581.202; POMS GN 02410.205.If facially valid and service is proper, SSA must honor the notice/order and effectuate a withholding.
As mentioned above, the income withholding order must contain only the information necessary for the income payer to comply with income withholding. See: N.D. Cent. Code § 14-09-09.15. Per the statute and the standardized form, failure to withhold income from the employee-obligor’s income as directed by the notice can expose the employer, trustee or payer to liability for the amount that should have been withheld and the any applicable penalties.
In this instance, the “Income Withholding Order/Notice for Support was properly served upon the agency office in Aberdeen, South Dakota and is valid on its face. See N.D. Cent. Code § 14-09-09.16. As such, the agency is obligated to comply and, in doing so, cannot be held liable for any issues Daniel may have with the validity and legality of the notice or order. See N.D. Cent. Code § 14-09-09.3(8).
The agency should not be concerned with Daniel’s claims regarding the legality or validity of the underlying support order issued by the Turtle Mountain Band of Chippewa Tribal Court or the establishment of paternity. The agency’s role is only to determine if the support withholding order is valid on its face (that is, contains the information required by statute) and was properly served.
Additionally and as mentioned above, a state hearing procedure is available for Daniel to contest the legality and validity of the notice or order. If utilized, that process will provide Daniel with the right and opportunity to challenge the support order issued by the tribal court including his allegation that paternity was not established.
Per North Dakota statute, the North Dakota Child Support Enforcement Division properly served the agency with a valid notice of withholding of support. As such, the agency is obligated to effectuate a withholding.
Daniel should address any concerns regarding the legality of the Notice to the North Dakota Child Support Enforcement Division or the tribal court that issued the underlying orders concerning support and paternity. The agency’s only responsibility is to comply with the Notice.
John J. Lee
Regional Chief Counsel, Region VIII
Paul R. Ritzma
Assistant Regional Counsel