State ex rel. Secretary v. Moses

• Citation: 186 P.3d 1216
• Decision Date: 11 July 2008
• Docket Number: No. 99,006.,99,006.
• Parties: STATE of Kansas, ex rel. SECRETARY, KANSAS STATE DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES; Sheema Williamson, the mother, and Queen Moses, a minor child by and through Sheema Williamson, next friend, Appellants, v. Donald MOSES, Appellee.
• Court: Court of Appeals of Kansas

186 P.3d 1216

STATE of Kansas, ex rel. SECRETARY, KANSAS STATE DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES; Sheema Williamson, the mother, and Queen Moses, a minor child by and through Sheema Williamson, next friend, Appellants, v. Donald MOSES, Appellee.

No. 99,006.

Court of Appeals of Kansas.

July 11, 2008.

Stanley R. McAfee, Wyandotte County deputy court trustee, for appellants.

Patricia M. Thomas and Lowell C. Paul, of Kansas Legal Services, for appellee.

Before McANANY, P.J., GREEN and CAPLINGER, JJ.

GREEN, J.

The State of Kansas (by the Kansas Department of Social and Rehabilitation Services), Sheema Williamson, and minor child Queen Moses, through the Wyandotte County Court Trustee's office, appeal the decision of the trial court terminating Donald Moses' child support obligation. Did the trial court abuse its discretion in terminating Moses' child support obligation when his only source of income was Supplemental Security Income (SSI)? We say no.

In July 2003 the Secretary of the Kansas Department of Social and Rehabilitation Services filed a petition in the district court to establish paternity of Queen Moses in Donald Moses. Moses voluntarily entered his appearance in the case that same day. In August 2003 a default judgment for paternity was entered against Moses, adjudging him the father of Queen.

In November 2004, Sheema Williamson, Queen's mother, moved to establish child support. At a hearing held in December 2004 Moses was ordered to pay Williamson $590 per month for child support, commencing December 1, 2004.

Moses later moved to reduce child support contending that the order was in excess of the amount recommended by the Kansas Child Support Guidelines (KCSG). Because the court found that Moses was receiving only SSI, the court modified Moses' child support payment to $76 per month.

In March 2007 Moses moved to terminate child support and to abate the outstanding arrearage. Moses alleged that he was unable to engage in substantial gainful employment and was therefore deemed disabled under federal law. He asserted that his only income at all times since the original order was SSI, which is exempt from legal process under federal law. Moses argued that because the 2004 KCSG defines domestic gross income as excluding public assistance, including SSI, he has no income and no child support obligation.

In May 2007 the district court granted Moses' motion to terminate child support. In addition, the court found that it lacked authority to abate the outstanding child support.

Did the District Court Abuse its Discretion in Terminating Moses' Child Support Obligation?

The district court terminated Moses' child support obligation without stating the basis for its decision. Both parties agree that the decision is premised on the fact that Moses has no other source of income except SSI, which is excluded from domestic gross income under the KCSG. As a result, Moses' child support obligation would be zero according to the KCSG.

The appellants argues that the provision within the KCSG that excludes SSI from domestic gross income is contrary to the duty of parents to support their children. The appellants further argues that by terminating child support, the court has misinterpreted the purpose of the KCSG to establish child support orders. In essence, the appellants argues that Moses' SSI income should be included in his domestic gross income despite the language of the KCSG.

Our standard of review on appeal from a trial court order determining the amount of child support is whether the court abused its discretion. In re Marriage of McNeely, 15 Kan.App.2d 762, 768, 815 P.2d 1125, rev. denied 249 Kan. 776 (1991). "`Judicial discretion is abused when action is arbitrary, fanciful, or unreasonable, which is another way of saying discretion is abused when no reasonable person would take the view adopted by the trial court.'" McNeely, 15 Kan.App.2d at 768, 815 P.2d 1125. A challenge to the district court's interpretation and application of the KCSG is a question of law over which this court has unlimited review. In re Marriage of Callaghan, 19 Kan. App.2d 335, 336, 869 P.2d 240 (1994).

As stated earlier, the trial court ordered Moses to start paying child support in December 2004. See KCSG § I (2004 Kan. Ct. R. Annot. 99). "Judges and hearing officers must follow the guidelines." KCSG § I (2004 Kan. Ct. R. Annot. 99); see also In re Marriage of Schletzbaum, 15 Kan.App.2d 504, 506-07, 809 P.2d 1251 (1991) (noting that use of the guidelines is mandatory). A parent's net child support obligation is calculated by completing a child support worksheet. KCSG § I (2004 Kan. Ct. R. Annot. 99). The child support obligation is a rebuttable presumption of a reasonable child support order.

Section A of the child support worksheet requires that each parent provide his or her domestic gross income; this figure is then subject to certain adjustments and multiplied by each parents' proportionate share of income to determine the gross child support obligation. KCSG § IV(A) (2004 Kan. Ct. R. Annot. 106); Appendix VII (2004 Kan. Ct. R. Annot. 149). The KCSG defines domestic gross income as income from all sources excluding public assistance. KCSG § II.D. (2004 Kan. Ct. R. Annot. 100). "Public assistance" means all income received from public sources and for which the recipient is eligible based on financial need, including SSI specifically. KCSG § II.D.

Further, SSI is clearly excluded from domestic gross income under the plain and unambiguous terms of the KCSG.

The appellants provides no precedential authority for its position, relying instead on Davis v. Office of Child Supp. Enfc'mnt, 68 Ark.App. 88, 5 S.W.3d 58, rev'd 341 Ark. 349, 20 S.W.3d 273 (2000). The appellants urges that Davis "addressed this very issue and joined with other states in holding that the State is not preempted from ordering a parent whose sole source of income is SSI to pay child support." The appellants, however, fails to mention that the Davis decision was reversed by the state supreme court the following year.

In Davis v. Office of Child Supp. Enforcem't, 341 Ark. 349, 351-52, 20 S.W.3d 273 (2000), the sole source of income for the noncustodial parent, Davis, was SSI. The district court ordered, and the appellate court affirmed, that Davis pay $70 per month in support. The state administrative order governing child support payments defined income broadly and did not specifically exclude SSI. Nevertheless, the state supreme court reversed, holding that although SSI comes within the definition of income, federal law prohibits state child support payments from SSI benefits. 341 Ark. at 354, 358, 20 S.W.3d 273. The court noted specific federal law limiting state authority with respect to SSI payments: Congress expressly protected Social Security benefits from legal process in 42 U.S.C. § 407 and § 1383(d)(1). See 42 U.S.C. § 407(a) (2000) (SSI benefits are not subject to "execution, levy, attachment, garnishment, or other legal process"); 42 U.S.C. § 659(a) (2000) (SSI cannot be garnished or attached for child support or alimony). Subjecting SSI to state child support orders would damage the clear and substantial federal interest of providing a minimum level of income to persons who are receiving benefits because they are unable to engage in substantial gainful activity. 341 Ark. at 355-58, 20 S.W.3d 273.

Although Davis noted that the responsibility of a parent to support his or her children is a "moral imperative," it also stated that little choice existed for disabled parents living exclusively on subsistence income. 341 Ark. at 357 n. 1, 20 S.W.3d 273. The court joined the 38 other states, including Kansas, that exempted SSI benefits from inclusion in gross income for child support purposes. 341 Ark. at 358 n. 2, 20 S.W.3d 273. Thus, Davis will not bear the weight of reliance which the appellants places upon it, not only because Davis was later overturned, but also because the Arkansas statute did not specifically exclude SSI from domestic gross income as does Kansas.

Conversely, in Marrocco v. Giardino, 255 Conn. 617, 624 n. 6, 767 A.2d 720 (2001), which is similar to this case, the state statute for determining child support obligation defined gross income to include social security benefits but specifically excluded SSI. Giardino, the father, was dependent on SSI and state supplementation as his sole source of income. Although the lower court ruled that Giardino had no income under the guidelines, it ordered him to pay $12 per week in support in the best interests of the child. When Giardino appealed, Marrocco relied primarily upon the public policy argument that the intent of the guidelines was to ensure that all parents were responsible for their children.

The appellate court reversed the child support payment, reasoning that the legislature's decision to exclude SSI from gross income was based on the fact that SSI was a federal social welfare program designed to provide a guaranteed minimum income for individuals who cannot work because of age, blindness, or disability. The court stated:

"[B]oth SSI and state supplementation are awarded on the basis of need and are designed to protect the individual recipients from poverty. It therefore follows that allowing child support payments to be deducted from this already small figure would reduce the recipient's income below that necessary to protect him or her from poverty [citations omitted] in contravention to the legislative intent that drives these programs. The fact that the commission expressly excluded both SSI and public assistance grants from the calculation of gross income indicates that the commission recognized the purpose underlying these programs and determined that parents should not be required to subsist on below poverty level incomes so that they may provide something in child support. Therefore, although the plaintiff is correct in her assertion that...