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Laura Wish Morgan

Some parents have begun to argue that certain payments received cannot be considered “income” because federal law preempts their treatment as income. This argument has generally not been successful when the benefits at issue are not payments from the government, but merely payments governed by federal law.

In Boutz v. Donaldson, 128 N.M. 232, 991 P.2d 517 (1999), the father argued that the trial court’s consideration of the income he received from his copyrights works was error, specifically basing his argument on a theory of federal preemption. The father argued that The Federal Copyright Act, 17 U.S.C. § 201 (1994) provides that a copyright “vests initially in the author,” 17 U.S.C. § 201, and cautions that copyrights “are governed exclusively” by the Act and not by “the common law or statutes of any State,” 17 U.S.C. § 301(a) (1994). The father further pointed to language in Section 201(e) of the Act that states may not “seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright.” Although the father conceded that his theory of preemption is not explicit in the statute, he relied on these Congressional expressions as an indication of Congressional intent to preempt the field. The court found “Father’s argument novel but not persuasive.” The court held that copyrights are not federal benefits, but merely contractual benefits that are governed by federal law. This distinction is crucial was crucial to the court.

When the benefits are actually payments received from the federal government, the success of the argument depends on the wording of the federal statute that grants the benefits. Social Security retirement and disability benefits, for example, are explicitly subject to garnishment for child support. For this reason, the argument that they cannot be used for child support has failed. Supplemental Security Income (SSI), however, contains no exception to its anti-alienation clause. For this reason, a number of courts have been led to the conclusion that SSI benefits cannot be considered income for purposes of child support. Morris v. Comm. ex rel. Morris, 926 S.W.2d 674 (Ky. Ct. App. 1996); Tennessee Department of Human Services ex rel. Young v. Young, 802 S.W.2d 594 (Tenn. 1990) (exception for anti-attachment is only to social security earned on account of employment, not SSI); Reyes v. Gonzales, 26 Fam. L. Rep. (BNA) 1165 (Tex. Ct. App. 1/13/00); Bennett v. Virginia ex rel. Bennett, 22 Va. App. 684, 472 S.E.2d 668 (1996); Langlois v. Langlois, 441 N.W.2d 286 (Wis. Ct. App. 1989) (because child support is a form of “execution, garnishment, attachment and every other process” from which SSI benefits are exempt; hence, SSI benefits could not be considered income). These decisions, however, really miss the point of SSI. It’s not that SSI can’t be considered income. It’s that SSI, as means-based benefits, shouldn’t be considered income. See, e.g., Cox v. Cox, 654 N.E.2d 275 (Ind. 1995); In re Marriage of Benson, 495 N.W.2d 777 (Iowa Ct. App. 1992); Youngblood v. James, 883 S.W.2d 512 (Ky. Ct. App. 1994); In re Marriage of Emerson, 18 Kan. App. 2d 277, 850 P.2d 942 (1993); Becker v. Peppel, 493 N.W.2d 473 (Minn. Ct. App. 1992); Nicholson v. Gavin, 207 A.D.2d 402, 615 N.Y.S.2d 458 (1994); Paton v. Paton, 25 Fam. L. Rep. (BNA) 1300 (Ohio Ct. App. 3/16/99); Opinion No. 95-102, Tenn. Atty. Gen. (1995). Other cases, however, have disagreed with the preemption argument. Whitmore v. Kenney, 426 Pa. Super. 233, 626 A.2d 1180 (1993); Coulon v. Coulon, 915 P.2d 1069 (Utah Ct. App. 1996).

Others have also argued that because a federal statute shields the benefits from civil process, the benefits cannot be considered income. This argument has generally failed. In re Marriage of Purnell, 52 Cal. App. 4th 527, 60 Cal. Rptr.2d 667 (1997) (just because income from Indian Trust Land is immune from civil process does not mean it is unavailable for child support); Loving v. Sterling, 680 A.2d 1030 (D.C. 1996) (federal law does not prohibit treating veteran’s administration disability benefits as income); People ex rel. Myers v. Kidd, 308 Ill. App. 3d 593, 720 N.E.2d 1125 (1999) (income from firefighters’ disability pension in income for child support, rejecting argument that because it is exempt from judicial process and not subject to tax it is not income). See also Seymour v. Hunter, 26 Fam. L. Rep. (BNA) 1108 (Iowa Sup. Ct. 12/22/99) (per capital payment to Native American father for casino earnings is income); Branson v. Branson, 411 N.W.2d 395 (N.D. 1987) (federal farm subsidy is income); Schroeder v. Schroeder, 52 Ohio App. 3d 117, 557 N.E.2d 145 (1988) (federal farm subsidy is income).

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