Collecting child support from disable veterans

COLLECTING CHILD SUPPORT
FROM DISABLE VETERANS

BY ZENELL B. BROWN

SENIOR STAFF ATTORNEY,
OFFICE OF THE FRIEND OF THE COURT
3RD JUDICIAL CIRCUIT OF MICHIGAN

In cases where the delinquent payer receives veterans' disability benefits, the common premise is that payer has no present ability to pay and little or no enforcement is pursued. Thus, the children of disabled veterans are short-changed their legal right to support.

In Rose v Rose, the United States Supreme Court addressed the issues of whether state courts may award child support if the non-custodial parent received veterans' disability benefits. Rose v Rose, 107 S.Ct. 2029 (1987). Rose, the appellant, argued that state courts were preempted from doing so based on several federal statutes. The Court held that state courts can establish child support orders even if the non-custodial parent received veteran's disability benefits as his sole means of support. State court jurisdiction is not preempted by any federal statute. The VA's discretionary power to apportion benefits for the veteran's dependent did not displace the states' traditional powers regarding child support. Id., at 2034. Furthermore, the Court found that although the VA has final and conclusive authority over any question of law or fact regarding veteran's benefits that authority was limited to technical interpretations of statutes granting entitlements and did not encompass the issue of child support. Id., at 2035.

The Supreme Court stated that state-court jurisdiction in awarding support was not preempted by 38 U.S.C. s 3101 (a) as well.⁽¹⁾ This statute protected veterans' disability benefits from attachment, seizure and garnishment. It was the Court's position that Congress intended that these benefits provide for the veteran as well as his dependents. Thus, states awarding child support did not conflict with Congress' intent and consequentially, the statute.

The Court, however, went on to state, "[Section]3101(a) does not extend to protect a veteran's disability benefits from seizure where the veteran invokes that provision to avoid an otherwise valid order of child support." Id., at 2038. Although at first glance, it appeared that states could now effect income withholdings to the VA, the issue of a garnishment of veterans' disability benefits was not an issue before the Court. This statement was dictum. Moreover, the Court through-out the decision stated that the VA should not be a collection agency: "While it may be true that these funds are exempt from garnishment or attachment while in the hands of the Administrator, we are not persuaded that once these funds are delivered to the veteran a state court cannot require the veteran to use them to satisfy an order of child support." Id. at 2039. Thus, the states' authority to issue income withholdings to the Veterans' Administration was unclear.

Later Michigan and federal decisions still have not resolved whether veterans' disability benefits are attachable if they are the veteran's sole means of income. ⁽²⁾ But in Tennessee, the State Court of Appeals held that veteran disability benefits are attachable. Ruffin v Ruffin, 753 SW2d 824 (1988) at 827. The Veteran's Administration stated it will not honor any Income Withholding Orders. The issue is ripe for litigation.

In the meantime, however, children of veterans still do not have to go without any monetary form of support. The Veterans' Administration is more than willing to review all applications for apportionment. Federal statute 38 U.S.C. s 5307 allows for the veteran's children not in his custody to receive a portion of the veteran's benefits. As pointed out previously, the Veterans' Administration approval is totally discretionary. Foremost, the Administration ensures that the veteran's needs are being met, then it reviews the financial status of both parties and decides what amount, if any, should be apportioned for the children's needs.

The application process for apportionment is fairly simple. The custodian of the child writes a letter to the VA that includes the name and social security number of the veteran, the name and date of birth of the child, and the signature of the custodian. The custodian must also submit documents showing the veteran is the parent of the child, e.g., the Order of Filiation, the Paternity Acknowledgment, or the birth certificate. The custodian may also submit a copy of the Order for Support and documentation of the arrearages, but the administration is not obligated to apportion the amount in the child support order. There are no guidelines similar to those courts follow. Each application is reviewed on a case by case basis. Once an apportionment is granted - and they routinely are - the custodian will receive benefits directly from the VA. (The VA will not direct apportionment payments through the Friend of the Court.)

Thus, although the Friend of the Court may not have income withholding as an enforcement tool, it can ensure that the veteran is not permitted to dodge his moral and legal obligation of supporting his children. The Friend of the Court can assist the custodian by providing a form letter to initiate the apportionment process and copies of documents that establish parentage.

The Veterans' Administration will answer telephone inquiries as to whether a person is receiving veteran's disability benefits. Although the weight the Veterans' Administration will give to it is uncertain, the Friend of the Court could also obtain a consent for apportionment from the veteran. The FOC could then adjourn the contempt proceedings to ensure that benefits are apportioned or if not, proceed with other contempt remedies such as scheduled lump sum payments or jail. In summary, the Friend of the Court can take action to ensure that children of veterans do not go without monetary support by using the tools presently available and by challenging the Veterans' Administration's policy on income withholding when the appropriate case arises.

1. This section has now been re-numbered to 38 U.S.C.A. 5301 (a).

2. Federal Statute 42 U.S.C.A.s 659 (h)(1)(A)(V) allows for attachment if disability benefits are received in lieu of a portion of Armed Forces retire-ment or retain pay.