State ex rel. Moeller v. White

• Decision Date: 25 September 2009
• Docket Number: No. 101,330.,101,330.
• Citation: 216 P.3d 727
• Parties: STATE of Kansas ex rel. Secretary of the Kansas Department of Social and Rehabilitation Services, Mary F. MOELLER and Corrine R. White, by and through Mary F. Moeller, her guardian and next friend, Appellees, v. Larry A. WHITE, Appellant.
• Court: Kansas Court of Appeals

216 P.3d 727 STATE of Kansas ex rel. Secretary of the Kansas Department of Social and Rehabilitation Services, Mary F. MOELLER and Corrine R. White, by and through Mary F. Moeller, her guardian and next friend, Appellees,
v.
Larry A. WHITE, Appellant. No. 101,330. Court of Appeals of Kansas. September 25, 2009.

[216 P.3d 728]

Larry White, appellant pro se.

[216 P.3d 729]

Randy M. Barker, of Kansas Department of Social and Rehabilitation Services, of Topeka, for appellees.

Before McANANY, P.J., PIERRON and LEBEN, JJ.

McANANY, J.

In 1989, the State of Kansas Department of Social and Rehabilitation Services (SRS) commenced proceedings against Larry A. White regarding the paternity of a child born in 1988. White was personally served with process but failed to respond. The district court entered a default judgment against him declaring him to be the father of the child and ordering him to pay child support of $200 per month plus $1,614 for State assistance provided for the child.

There followed many proceedings to enforce the court's support order. In 2003 White, who was now disabled, began receiving Social Security Disability Insurance (SSDI) benefits. In December 2005, the court issued a monthly income withholding order for $200 per month child support and for $50 per month to be applied to the accumulated arrearage. The order applied to White's SSDI payments. In May 2006, the withholding order was reduced to $200 per month child support and $25 per month for the arrearage.

In June 2007, White's obligation for ongoing support ended when his child, who had already reached age 18, completed high school. Accordingly, in July 2007 the withholding order was modified to $225 per month to be applied to the child support arrearage, which by this time amounted to approximately $39,000.

In 2008, White was in prison serving a 24-month sentence for burglary and theft. He is scheduled for release in December 2009. White moved to terminate the income withholding order. In September 2008, the district court denied White's motion, and he now appeals.

Whether White's SSDI is subject to the district court's withholding order is an issue of law over which our review is de novo. See Genesis Health Club, Inc., v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008).

Cases

Our Supreme Court addressed the issue in Mariche v. Mariche, 243 Kan. 547, 758 P.2d 745 (1988). In Mariche, the court determined that SSDI benefits are subject to garnishment to recover past-due child support. 243 Kan. at 550, 758 P.2d 745.

White ignores Mariche and relies on State ex rel. Secretary of SRS v. Moses, 39 Kan. App.2d 1054, 186 P.3d 1216 (2008). This reliance is misplaced. The court in Moses held that Supplemental Security Income (SSI) benefits are not treated as income in the calculation of child support. Moses does not address SSDI benefits, such as those White receives.

SSDI is federal disability insurance. 42 U.S.C. § 423(a) (2006). To qualify for SSDI, one must have a physical or mental condition that prevents one from engaging in "substantial gainful activity." 42 U.S.C. § 423(d)(1)(A). The condition must be expected to last at least 12 months or to result in death. 42 U.S.C. § 423(d)(1)(A). The individual must meet work history requirements. 42 U.S.C. § 423(c)(1)(B). The previous earnings of the...