Davis v. Office of Child Support Enforcement

Judith Rogers, Judge. Appellant, Martha S. Davis, was ordered by the Randolph County Chancery Court to pay child support in the amount of $70.00 a month. For reversal, appellant contends that the Chancery Court erred in finding that Supplemental Security Income [hereinafter “SSI”] is “income” from which child support can be assessed. We have found no cases specifically mentioning the issue of Supplemental Security Income, but in examining the law as it relates to “income” for purposes of setting child support in the State of Arkansas, we now conclude that SSI is “income,” and we affirm. On April 10, 1989, the Chancery Court of Randolph County entered its Decree of Divorce awarding custody of the two minor children of appellant, Martha S. Davis, to the children’s father, Randy I. Davis. The parties reached a settlement that did not require the appellant to pay child support because she was unemployed. The trial court incorporated this settlement agreement in its decree and did not direct the appellant to pay child support. Randy Davis assigned all rights to child support to the appel-lee, Office of Child Support Enforcement, who, in April 1998, filed an action against appellant in the Chancery Court of Randolph County to set child support. The appellant filed an answer alleging that she was disabled and that her only source of income was Supplemental Security Income in the amount of $484.00 a month. At trial appellant testified that, in exchange for $400.00 a month in rent, her sister allows the appellant to live with her and supplies items such as groceries and cigarettes. Appellant testified that she smoked “a pack a day, maybe.” The remainder of appellant’s income each month was used to purchase prescription medication to treat her disability. On August 4, 1998, the Chancery Court of Randolph County found in favor of the appellee, and ordered the appellant to pay child support. Specifically the Court found: 4. That the Court was presented with the issue whether or not an individual whose sole source of income is Supplemental Security Income (SSI) could be ordered to pay child support. That the Court finds that the Defendant owes a continuing duty of support to the aforementioned children; Defendant currently receives Supplemental Security Income in the amount of $494.00 per month; and utilizing this income she smokes “about one pack of cigarettes a day maybe”, and considering this and all other evidence before me, the Defendant is hereby directed to pay the sum of $70.00 per month as a reasonable amount of support for the Defendant to pay beginning Friday, August 7, 1998. Deviation from the chart is supported by evidence presented to the Court and so noted on the record pursuant to Ark. Code Ann. § 9-12-312. The amount of child support a chancery court awards lies within the sound discretion of the court and will not be disturbed on appeal absent an abuse of discretion. Schumacher v. Schumacher, 66 Ark. App. 9, 986 S.W.2d 883 (1999). In setting the amount of family support, the chancellor must refer to the child-support chart. Id. Reference to the family-support chart is mandatory. Woodson v. Johnson, 63 Ark. App. 192, 975 S.W.2d 880 (1998); Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998); Anderson v. Anderson, 60 Ark. App. 221, 963 S.W.2d 604 (1998). See also Ark. Code Ann. § 9-14-106 (Repl. 1998). The family-support chart creates a rebuttable presumption that the amount of child support set forth therein is the correct amount of child support to be awarded. That amount can be disregarded only if the chancery court makes express written findings or specific findings on the record that application of the support chart is unjust or inappropriate. Woodson v. Johnson, supra and Anderson v. Anderson, supra. Relevant factors to be considered by the court in determining whether to deviate from the amount of child support set by the family-support chart are set forth in Administrative Order No. 10: Arkansas Child Support Guidelines, 329 Ark. appx. 668 (1997).1 Schumacher v. Schumacher, 66 Ark. App. 9, 986 S.W.2d 883 (March 17, 1999). In the matter at hand, the appellant does not contest the deviation from the chart. There is no evidence in the abstracted record to demonstrate the financial needs of the children or the custodial parent. This is very troublesome to the dissent. However, the appellant does not question the factual findings of the trial court. The only issue on appeal is whether or not SSI is “income” for purposes of paying child support. Thus, the sufficiency of the evidence to support the award of child support in this particular case is immaterial to this appeal. We will not violate the long-standing rules of this court mandating that we address only those issues properly presented for our review in order to reach what the dissent views as a less tragic ending to this case. We have been presented with a single question of law, that is whether SSI benefits can be considered “income” for purposes of setting child-support obligations. We will reach no other issue. Furthermore, even if the sufficiency of the evidence had been questioned by appellant, it is her responsibility to bring up a record sufficient to demonstrate error. Clowney v. Gill, 326 Ark. 253, 929 S.W.2d 720 (1996); Hamilton v. Jeffrey Stone Co., 25 Ark. App. 66, 754 S.W.2d 850 (1988). Appellant could have requested that the trial court make specific findings of fact pursuant to Ark. R. Civ. P. 52 concerning the financial needs of the children, but she did not; therefore, she has waived that issue. See Smith v. Quality Ford, Inc., 324 Ark. 272, 276, 920 S.W.2d 497 (1996) (“[Rule 52] retains prior state law by which the failure of a party to request special findings of fact amounted to a waiver of that right. Reporter’s Notes (as modified by the Court) to Rule 52, n. 1 [citing Anderson v. West Bend Co., 240 Ark. 519, 400 S.W.2d 495 (1966)].”) In the absence of evidence to the contrary, we will assume that the chancery court correcdy applied the law. See Brouwer v. Stephens, 1 Ark. App. 87, 644 S.W.2d 329 (1983). Therefore, we limit our discussion to the question of law properly presented to us and do not question the findings of fact below. The child-support guidelines of the State of Arkansas define “income” as “any form of payment, periodic or otherwise, due to an individual, regardless of source. ...” Child Support Guidelines, 329 Ark. appx. at 669; see also Ark. Code Ann. § 9-14-201(7) (1998 Repl.). Thus, under the plain language of the statute, the regular SSI payments received by appellant are “income.” This conclusion is supported by this court’s precedent as discussed in the following cases. In Belue v. Belue, 38 Ark. App. 81, 828 S.W.2d 855 (1992), this court held that veteran’s disability benefits are properly considered income. Also, in Kimbrell v. Kimbrell, 47 Ark. App. 56, 884 S.W.2d 268 (1994), this court held that child support was properly assessed against an individual whose sole source of income was $435.00 per month in Social Security Disability benefits. “The language . . . contained in the per curiam shows the committee’s intent to expand, not restrict, the sources of funds to be considered in setting child support.” Belue v. Belue, 38 Ark. App. 81, 828 S.W.2d 855 (1992). The court’s reasoning in Kimbrell is applicable here: “Despite appellant’s disability, [s]he has a source of income and thus is not wholly without the means to pay support.” Kimbrell v. Kimbrell, 47 Ark. App. 56, 884 S.W.2d 268 (1994). “[E]ach parent is responsible for bringing the child into this world and each, where financially able, has an obligation to render assistance.” Id., quoting Petty v. Petty, 252 Ark. 1032, 482 S.W.2d 119 (1972). Therefore, we affirm the finding of the chancery court that SSI benefits are income from which child support can be assessed under Arkansas law. The question remains as to whether federal law preempts Arkansas courts from assessing child support against SSI benefits. The United States Supreme Court has stated explicitly the standard that is to be used in determining whether a federal law preempts state law in matters of domestic relations: We have consistently recognized that “[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.” In re Burrus, 136 U.S. 586, 593-594, 10 S.Ct. 850, 852-853, 34 L.Ed. 500 (1890); see Hisquierdo, supra, 439 U.S., at 581, 99 S.Ct., at 808; McCarty, supra, 453 U.S., at 220, 101 S.Ct., at 2735. “On the rare occasion when state family law has come into conflict with a federal statute, this Court has limited review under the Supremacy Clause to a determination whether Congress has ‘positively required by direct enactment’ that state law be pre-empted.” Hisquierdo, supra, 439 U.S., at 581, 99 S.Ct., at 808, quoting Wetmore v. Markoe, 196 U.S. 68, 77, 25 S.Ct. 172, 175, 49 L.Ed. 390 (1904). Before a state law governing domestic relations will be overridden, it “must do ‘major damage’ to ‘clear and substantial’ federal interests.” Hisquierdo, supra, 439 U.S., at 581, 99 S.Ct., at 808, quoting United States v. Yazell, 382 U.S. 341, 352, 86 S.Ct. 500, 506, 15 L.Ed.2d 404 (1966). Rose v. Rose, 481 U.S. 619, 107 S.Ct. 2029 (1987). The question thus becomes whether Congress has “positively required by direct enactment” that the Arkansas law, which includes SSI benefits within its definition of “income” for purposes of setting child support, be preempted and whether the Arkansas law does “major damage to clear and substantial federal interests.” Id. Absent such a showing, Arkansas law will stand. Other states that have addressed this issue are divided. Minnesota, New York, Tennessee, and Wisconsin have held that federal law preempts states from ordering that SSI recipients pay child support. See Becker Co. Human Servs., re Becker Co. Foster Care v. Peppel, 493 N.W.2d 573 (Minn. Ct. App. 1992); Tennessee Dept. of Human Servs. ex rel Young v. Young, 802 S.W.2d 594 (Tenn. 1990); Langlois v. Langlois, 441 N.W.2d 286 (Wisc. Ct. App. 1989); Moore v. Sharp, 532 N.Y.S.2d 811 (N.Y. App. Div. 1988). Indiana and Iowa have state guidelines that prohibit the assessment of child support against income from public assistance. These states each define public assistance benefits to include SSI. See In re Marriage of Benson, 495 N.W.2d 777 (Iowa Ct. App. 1992); Esteb v. Enright, 563 N.E.2d 139 (Ind. Ct. App. 1990). We join with Alabama, Kentucky, and Pennsylvania in holding that an individual whose sole source of income is SSI can be ordered to pay child support. See Commonwealth of Ky., ex rel Morris v. Morris, 984 S.W.2d 840 (Ky. 1998); Whitmore v. Kenny, 626 A.2d 1180 (Pa. Super. Ct. 1993); Ex parte Griggs, 435 So.2d 103 (Ala. Civ. App. 1983). “The SSI program provides a subsistence allowance, under federal standards, to the Nation’s needy aged, blind, and disabled.” Swcheiker v. Wilson, 450 U.S. 221, 101 S. Ct. 1074 (1981). “This program was intended to assist those who cannot work because of age, blindness, or disability, by setting a Federal guaranteed minimum income level for aged, bbnd, and disabled persons.” Id. (quoting S. Rep. No. 92-1230, pp. 4, 12 (1972)). The protections against “execution, levy, attachment, garnishment, or other legal process” provided for social security disability benefits in 42 U.S.C. § 407(a) are extended to SSI benefits in 42 U.S.C. § 1383(d)(1). “The patent intent of [section 407] is to prohibit creditors from asserting claims upon SSI funds that take precedence over the SSI recipient’s right to such funds.” Morris, supra. However, “alimony and child support are not a debt in the same sense as a debt owed to a creditor. . . . They are a duty of a higher obligation.” Griggs, supra. Applying the standard articulated by the United States Supreme Court in Rose, we find that the State is not preempted from ordering that a parent whose sole source of income is SSI be subject to an order to pay child support. Although SSI is protected by section 407 against garnishment, levy, and other legal process, Congress created a limited waiver of this sovereign immunity in 42 U.S.C. § 659(a), which makes government benefits that are based upon remuneration for employment subject to child-support enforcement measures regardless of the protections of section 407. There is some ambiguity as to whether section 659 applies to SSI benefits or not and even as to whether the section 407 prohibition against garnishment and other types of legal process is applicable to child support. See Rose, supra. However, given this ambiguity in the language and the traditional deference given to the states in matters of family law, it cannot be said that Congress has acted in such a positive and direct manner as to preempt state action. Therefore, we must consider whether or not allowing state courts to assess child support against SSI benefits will do “major damage to clear and substantial federal interests.” Rose, supra. As stated above, the purpose of the SSI program is to guarantee to individuals a minimum level of subsistence income. Swcheiker, supra. The Arkansas law does not do major damage to this interest because the guidelines grant chancellors a measure of discretion in assessing support. See Child Support Guidelines, 329 Ark. appx. at 669. The Chancellor has the discretion to consider all of the evidence presented to the court in establishing child support and may deviate from the chart where it would be unjust not to do so. It shall be sufficient in a particular case to rebut the presumption that the amount of child support calculated pursuant to the Family Support Chart is correct, if the court enters in the case a specific written finding within the Order that the amount so calculated, after consideration of all relevant factors, including the best interests of the child, is unjust or inappropriate. Id. . It is the province of the trial court to make these calculations, and we will not disturb its findings absent an abuse of discretion. There is no major damage done to the federal interest in providing a subsistence income to blind, aged and disabled individuals when the trial court is given discretion to balance competing interests, such as those of a parent and her minor children. We have confidence in the abilities of the chancellors of this state to balance the needs of noncustodial parents on limited incomes with those of their children. They have done so until now, and we have no cause to believe they will suddenly lose their ability to weigh the equities in matters of child support simply because the parent is on SSI as opposed to social security disability. There is no “major damage” done to the federal interest of. providing a means of subsistence to blind, aged, and disabled individuals. In the instant case, the chancellor considered the low level of the appellant’s income along with her expenses and habits. According to the chancellor’s interpretation of the evidence before him, the appellant was financially capable of paying $70.00 per month in child support, even though her only means of income is SSI. The chancellor recognized that this is a downward deviation from the presumptive amount of support called for in the guidelines; however, he noted that the circumstances warranted deviation. As such, the federal interest in providing a means of subsistence was given due consideration in this matter without sacrificing the state’s interest in seeing that all parents support their minor children. As the dissent points out, we do not have before us evidence of all the financial matters involved in this case. We cannot assume based upon the limited evidence presented to us that the chancellor acted inequitably. Certainly, the appellant has a very limited income; however, without more information, we cannot simply assume that the $70.00 per month awarded by the chancellor toward the support of appellant’s children is not essential for their own subsistence. We noté that the dissent is concerned that the majority opinion violates the underlying federal public policy to provide a subsistence amount for its recipients. There is, however, an equally important public policy consideration that parents are responsible for the basic needs of their children. Cf. Kimbrell and Petty, supra. There is an obvious tension between these two concerns, and that is why discretion is given to the chancellor, who is in the superior position to observe witnesses and evidence, in child-support cases. See Child Support Guidelines, supra; see also Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982); Lagasse v. Lagasse, 234 Ark. 734, 354 S.W.2d 274 (1962); Griffen v. Newcom, 219 Ark. 146, 240 S.W.2d 648 (1951). Absent a more direct or explicit pronouncement from Congress that the federal policy of protecting individuals from poverty preempts Arkansas’ policy of protecting its children from the same horror, we find that Arkansas law is not preempted. Supplemental Security Income is “income” that can be considered in awarding child support. Affirmed. Hart, Jennings, and Stroud, JJ., agree. Crabtree J.,concurs. Griffen, J., dissents. Footnotes [1] Hereinafter we will refer to the Arkansas Child Support Guidelines as “guidelines,” “child support guidelines,” or “per curiam.”