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Essex County Division of Welfare v. Simon

Decided: April 21, 1981.

ESSEX COUNTY DIVISION OF WELFARE, AS ASSIGNEE OF CELOUISE SOUTHERLAND, PLAINTIFF-APPELLANT,
v.
KEVIN JAMES SIMON, DEFENDANT-RESPONDENT



On appeal from the Essex County Juvenile and Domestic Relations Court.

Michels, Kole and Ard. The opinion of the court was delivered by Michels, P.J.A.D.

Michels

Plaintiff Essex County Division of Welfare (Division of Welfare) appeals from that portion of an order of the Essex County Juvenile and Domestic Relations Court which designated Celouise Southerland (Southerland) the beneficiary of current court-ordered support payments owed by defendant Kevin James Simon, the father of Southerland's illegitimate child. At issue is whether the trial court's order violates the provisions of the Aid to Families with Dependent Children (AFDC) program, specifically, 42 U.S.C.A. ยง 602(a)(26)(A), which provides:

(a) A State plan for aid and services to needy families with children must . . .

(26) provide that, as a condition of eligibility for aid, each applicant or recipient will be required --

(A) to assign the State any rights to support from any other person such applicant may have (i) in his own behalf or in behalf of any other family member for whom the applicant is applying for or receiving aid, and (ii) which have accrued at the time such assignment is executed.

On November 9, 1976 Southerland gave birth to a daughter, Evelyn, who was born out of wedlock. Since the birth of the child, both Southerland and her daughter have received assistance grants from the Division of Welfare under the AFDC program. Initially, the grants were received in the name of the child's maternal grandmother, Mary Southerland, since Southerland was a minor at the time Evelyn was born. However, in February 1977 Southerland began to receive direct public assistance in her own name for herself and her infant child. On June 22, 1979 Southerland assigned whatever rights she and her daughter had to receive support payments from defendant to the Division of Welfare. The assignment was executed on a form (Form PA-10G) prepared by the Division of Public Welfare within the New Jersey Department of Institutions and Agencies (now the Department of Human Services). The assignment, which was signed by Southerland, reads as follows:

I, Celouise Southerland of 88 Eaton Pl. E. Orange, N.J. in consideration of receiving assistance for myself and/or other members of my family do hereby assign to the Essex County Welfare Board any right to support from any other person for myself or any other family member for whom I am applying for or receiving aid. I further agree that support rights which have accrued as of the time of this assignment may be used to reimburse the State for the amount of assistance received and to be received. The amount collected as child support shall be distributed in accord with Section 457 of Title IV of the Social Security Act. I have been informed by a representative of the County Welfare Board that, by making this assignment of support rights, I will receive on a regular basis the full amount of public assistance to which I may be entitled for myself and members of my family. I have made this assignment relying on such information.

The Division of Welfare, pursuant to the provisions of N.J.S.A. 9:17-2, instituted a bastardy proceeding against defendant. On September 26, 1979 defendant was adjudicated to be the father of Southerland's child and ordered to pay support payments of $35 a week to the Division of Welfare through the Essex County Probation Department. On May 29, 1980 defendant was ordered to appear before the trial court to answer

charges that he was $665 in arrears in his support obligations. Defendant failed to appear and a bench warrant was issued for his arrest. On June 6, 1980, following a hearing, the trial court continued its child support order for $35 a week. However, it ordered defendant to pay an additional $35 a week towards the child support arrearages. All payments were to be made by defendant to the Division of Welfare. Following the entry of that order, the trial court, by an order also dated June 6, 1980, amended its prior order and ordered a wage execution against defendant and designated Southerland as the beneficiary of the $35 a week support payments. The amended order, which the Division of Welfare challenges on this appeal, provides:

Order continued at $35.00 week thru probation for support of child, plus $35.00 week on arrears. Court orders wage execution. Beneficiary of support order is the plaintiff. ...


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