Desrochers v. Desrochers, 00-046.

• Decision Date: 15 February 2002
• Docket Number: No. 00-046.,00-046.
• Citation: 795 A.2d 1171
• Court: Vermont Supreme Court
• Parties: Robin DESROCHERS (Ashline) v. Tim E. DESROCHERS (Office of Child Support, Appellant)

795 A.2d 1171

Robin DESROCHERS (Ashline) v. Tim E. DESROCHERS (Office of Child Support, Appellant)

No. 00-046.

Supreme Court of Vermont.

February 15, 2002.

Thomas F. Garrett, Legal Services Law Line of Vermont, Burlington, for Plaintiff-Appellee.

Jeffrey L. Martin, Office of Child Support, Waterbury, for Appellant.

Present: AMESTOY, C.J., MORSE, JOHNSON and SKOGLUND, JJ., and COHEN, Supr. J., Specially Assigned.

MORSE, J.

This appeal involves three parties: mother, Robin Ashline, who is an Aid to Needy Families with Children recipient; father, Tim Desrochers, who was obligated to pay mother child support under a 1992 divorce order; and the Office of Child Support, which collects child support on behalf of mother. OCS appeals the decision of the family court determining that OCS did not have the right to collect and keep child support arrears that accrued prior to mother's receipt of ANFC benefits, but paid to her after her period of ANFC benefits and concomitant assignment of child support terminated. OCS argues that the terms of the assignment agreement signed by mother, as well as 33 V.S.A. § 3902 and 45 C.F.R. § 302.51, allow OCS to continue to collect the arrears until they have been reimbursed in full for the benefits paid to her.

Mother cross-appeals and argues that she is entitled to the entire amount of arrears that was reduced to a judgment in her favor by the family court in a March 1994 order, including amounts collected by OCS while she received benefits. She contends that the assignment agreement did not constitute a waiver of her rights under the court's 1994 judgment.

Because the arrears in question were reduced to a judgment for mother, we cannot agree with OCS that the terms of the assignment agreement she entered into under 33 V.S.A. § 3902, which assigned her right to child support, including past due support, in exchange for ANFC benefits, operated also as an assignment of her rights under the family court's 1994 judgment. Therefore, we modify the judgment of the family court to award mother the entire amount ordered paid to her in the 1994 judgment withheld by OCS.

The facts of this case are not disputed. A daughter was born to mother and father on February 4, 1982. The couple later married on July 15, 1989. They then divorced in December 1992. The family court entered a child support order on May 11, 1992 requiring father to pay mother $33.20 per week. Father fell into arrears on his child support obligation, and OCS brought an enforcement action as an intervenor on January 13, 1994. Father and mother appeared pro se. All three parties stipulated to the entry of an order by the family court that required father to pay mother a total of $1956.36 in arrears and OCS a total of $494.63 in arrears, as mother had received ANFC benefits for a period of time prior to the court's order. The order explicitly provided that "[p]ayment on arrears owed to State shall begin after arrears owed to [mother] have been paid in full." (Emphasis added.) The order provided that the judgment be paid through wage withholding administered by OCS. No party sought to either amend or appeal the judgment.

Several months after the court's order, mother again applied for ANFC benefits. As part of her application, she agreed to assign her rights to child support to OCS. According to mother, even prior to the execution of this agreement, however, she did not receive any of the payments made on the judgment through OCS. OCS does not appear to contest this assertion. During the period she did receive ANFC benefits, OCS continued to collect and retain payments made on the judgment. After the termination of mother's ANFC benefits, OCS transferred current support amounts to her, but continued to keep payments made by father towards mother's portion of the 1994 judgment.

Mother unsuccessfully sought administrative review of OCS's actions and then appealed to the family court. A magistrate reversed the decision and ordered OCS to pay the entire amount of arrears owed to mother under the 1994 judgment, grounding its decision on its determination that withholding this money was not in the best interest of the child. The magistrate noted that, consequently, the court did not need to decide whether mother knowingly waived any of her legal rights to the amount specified in the 1994 judgment. OCS then appealed the magistrate's decision. The family court modified the magistrate's judgment, concluding that, under the statute governing assignment of arrears accruing under a child support order, OCS was entitled to the portion of arrears collected during the time mother was receiving benefits, but any payments made by father towards the judgment after her benefits ended should go to her. Both OCS and mother appeal from this decision.

Title 33, § 3902 provides in relevant part:

(a) As a condition of eligibility for public assistance, each applicant or recipient shall assign to the department [of prevention, assistance, transition, and health access] any right to support from a responsible parent which has accrued at the time of the assignment . . . .

. . . .

(c) . . . When an assignment is in effect pursuant to subsection (a) of this section, any amounts accrued under the support obligation as of the date of assignment, and any amount accruing while the assignment is in effect, shall be owing to and payable to the department. . . without further order of the court.

33 V.S.A. § 3902; see also 42 U.S.C. § 602(a)(26)(A) (1994) (repealed and replaced 1996) (requiring state plans distributing federal aid to include provision for the assignment of child support rights by a recipient). OCS argues that the distribution of payments collected from father, specifically the portion of which was to be retained by OCS pursuant to mother's assignment under § 3902, was governed by 45 C.F.R. § 302.51 as it was in effect at the time mother executed her assignment agreement. See 45 C.F.R. § 302.51 (1994) (amended 1999) (establishing requirements for the distribution of support collections). At that time, 45 C.F.R. § 302.51(f) provided: "When a family ceases receiving assistance under the State's ... plan, the assignment of support rights . . . terminates, except with respect to the amount of any unpaid support...