On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket Number FD-04-3440-94.
Before Judges Havey, Fall and Parrillo.
The opinion of the court was delivered by: Fall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 2, 2004
This appeal raises the issue of whether federal Supplemental Security Income (SSI) benefits received by a disabled parent may be utilized as income when calculating a child support obligation when such benefits are the sole source of support of that parent, and income cannot otherwise be imputed to the parent. We conclude that they cannot, and now reverse that portion of an order entered in the Family Part on December 20, 2002, assessing a child support obligation against defendant, Benjamin Edwards, Jr., a recipient of SSI benefits by reason of his psychiatric disability. The relevant factual and procedural history follows.
Plaintiff Carolyn Burns and defendant are the parents of one minor child. Plaintiff has custody of the child and was herself a recipient of means-tested public assistance benefits on behalf of the child, payable through plaintiff Camden County Board of Social Services (CCBSS). Although not relevant to our analysis, the record on appeal does not reflect whether Ms. Burns had been collecting Aid to Families with Dependent Children (AFDC), pursuant to N.J.S.A. 44:10-3.5 (repealed by L. 1997, c. 38, § 17), or Temporary Assistance for Needy Families (TANF), pursuant to the block grant program enacted by Congress in 1996 to replace AFDC. See 42 U.S.C.A. §§ 601-608.*fn1
Defendant is an age forty-one disabled person diagnosed with schizophrenia and is a recipient of SSI, a means-tested federal disability program administered by the Social Security Administration. See 42 U.S.C.A. §§ 1381-1385; 20 C.F.R. § 416.501. Defendant's sole source of income is his SSI benefit, and the record is devoid of any evidence that defendant has an earning capacity from which he could derive any additional income; rather, the record supports the conclusion that defendant has no ability to earn income.
Defendant receives a monthly SSI benefit of $576.25, and has been placed in a boarding home under a statutory and regulatory scheme for disabled persons that has resulted in the payment of the SSI benefit directly to the eligible boarding home, less a Personal Needs Allowance (PNA) that is provided directly to the SSI-eligible recipient. N.J.S.A. 44:7-87(h); N.J.A.C. 5:27-11.6. Here, $495.75 of defendant's monthly SSI benefit is paid to the boarding home and defendant receives a monthly PNA of $80.50. Defendant is also a recipient of Medicaid benefits. Defendant attends a mental health counseling program, known as DayBreak Treatment Care, five days each week and is under the care of Dr. Bellias, a psychiatrist. An August 13, 2002 letter to the Family Part from DayBreak Treatment Care states, inter alia, that defendant"has been diagnosed with Schizophrenia and is currently unable to be employed."
CCBSS, on behalf of plaintiff Carolyn Burns, filed a non-dissolution complaint against defendant in the Family Part, seeking the establishment of a child support obligation.*fn2 An order was entered on December 14, 1998, requiring defendant to pay a weekly child support obligation in the amount of $15, plus $10 per week toward an undisclosed amount of arrears. That order inaccurately reflected defendant's income source as"SSD." As a result of application of the cost-of-living adjustment to child support orders required by Rule 5:6B, an order was entered on December 26, 2000, increasing defendant's weekly child support obligation to the sum of $16, plus $10 per week toward payment of arrears, effective as of December 23, 2000.
On November 12, 2002, the Community Health Law Project, on behalf of defendant, filed a motion in the Family Part seeking an order terminating defendant's child support obligation and reducing the periodic payment toward liquidation of accumulated arrears. The position taken on defendant's behalf was that SSI benefits cannot be utilized as a basis for establishment of a child support obligation, nor can they be garnished or otherwise attached.
In his supporting certification, defendant stated that the support arrears were approximately $4,000 and that he was willing to liquidate same at the payment rate of $20 per month. Defendant's motion was also supported by a case information statement (CIS), listing no assets or income other than his SSI benefits.
In response to the motion, CCBSS submitted a letter to the Family Part dated November 13, 2002, that only addressed the issue of arrears, stating in pertinent part:
The only interest of the Camden County Board of Social Services is in an arrears of $42.00 plus a conditional arrears of $2,858.00 in accordance with the Probation Department obligation inquiry attached. The current arrears order is $10.00 per week and, the Camden County Board of Social Services defers to the discretion of the court as to whether the amount should be reduced pursuant to defendant's Motion.
Since the only interest expressed by CCBSS related to arrears, we infer that plaintiff Carolyn Burns was no longer a recipient of public assistance benefits at the time defendant made his motion. Plaintiff, who was served with defendant's motion, did not respond to the motion nor appear at the motion hearing.
A hearing was held in the Family Part on December 20, 2002. The motion judge rejected defendant's argument that his SSI benefits could not be considered when determining his child support obligation. However, the court agreed that a reduction was warranted, and an order was entered on that date, reducing defendant's child support obligation to the sum of $40 per month, effective November 12, 2002, plus payment of $10 each month toward liquidation of the arrears. The judge agreed with the contention of defendant's counsel that 42 U.S.C.A. § 407(a) prohibited enforcement of the child support obligation through a garnishment or execution against defendant's SSI benefits but ruled,"I'm not taking the action against SSI, I have no right to execute on it, I'm simply saying he has to pay the support."
On appeal, defendant presents the following argument for our consideration:
THE LOWER COURT ERRED IN ORDERING DEFENDANT TO PAY CHILD SUPPORT AS FEDERAL LAW, 42 U.S.C. § 407 PROVIDES FOR THE INALIENABILITY OF SUPPLEMENTAL SECURITY INCOME AND THUS FORBIDS ANY STATE FROM ORDERING CHILD SUPPORT TO BE PAID WHERE SSI IS THE RECIPIENT'S ONLY INCOME.
We begin our analysis with a discussion addressing the nature of defendant's SSI benefit and the differences between"means-tested" and"non-means-tested" government benefits relevant to the establishment, modification and enforcement of a child support obligation. SSI, which is a means-tested benefit, differs substantially from Social Security Disability (SSD), which is a non-means-tested benefit program.
A government benefit is"means-tested" if eligibility for the benefit, or its amount, is determined on the basis of the income or resources of the recipient. Riggs v. Riggs, 622 N.W. 2d 861, 866-67 (Neb. 2001); Forbes v. Forbes, 610 N.E. 2d 885, 887-88 (Ind. Ct. App. 1993). See Pressler, Current N.J. Court Rules, Appendix IX-B to Rule 5:6A,"Use Of The Child Support Guidelines,""Types of Income Excluded from Gross Income" (2004) (excluding means-tested income, including SSI benefits, from the definition of"gross income"); 8 C.F.R. § 213a.1 (defining a means-tested benefit as a public benefit"funded in whole or in part by funds provided by the Federal Government that the Federal agency administering the Federal funds has determined to be a Federal means-tested public benefit under the Personal Responsibility and Work Opportunities Reconciliation Act of 1996, Public Law 104-193"). See also Hartman v. Hartman, 622 N.W. 2d 871, 877 (Neb. 2001) (noting that"[t]he Social Security Administration has stated that as to the programs it administers, for purposes of the federal Personal Responsibility and Work Reconciliation Act of 1996, only'supplemental security income benefits' are'"Federal means-tested public benefits."'" (quoting 62 Fed. Reg. 45, 284 (August 26, 1997)). SSI and other means-tested government benefits are financed from general revenues in order to provide disabled indigents with minimally adequate incomes, whereas SSD benefits are financed from payroll deductions.
SSD payments represent money which an employee has earned during his or her employment and also that which his or her employer has paid for the employee's benefit into a common trust fund under the Social Security Act. See 42 U.S.C.A. § 405. SSD"payments are for the purpose of replacing income lost because of the employee's inability to work upon becoming disabled." Lightel v. Meyers, 791 So. 2d 955, 959 (Ala. Ct. App. 2001). Stated another way, SSD payments are a substitute for earned income and are thereby non-means-tested benefits.
Unlike SSD payments, SSI benefits are not a substitute for lost income due to disability; rather, they are a supplement to the recipient's income. The purpose of SSI benefits is to assure that the income of a recipient is maintained at a level viewed by Congress as the minimum necessary for subsistence. Schweiker v. Wilson, 450 U.S. 221, 223, 101 S. Ct. 1074, 1077, 67 L. Ed. 2d 186, 191 (1981); Davis v. Office of Child Support ...