Attorney General's Opinion
Attorney General, Richard Blumenthal
October 4, 1993
Department of Social Services
110 Bartholomew Avenue
Hartford, Connecticut 06106-2200
Dear Commissioner Rowe:
This is in response to your request for a formal opinion as to whether Connecticut's child support-related wage withholding legislation is in compliance with certain federal statutory and regulatory mandates. Attached to your request was a copy of correspondence received from the federal Office Of Child Support Enforcement ("OCSE"), Department of Health and Human Services, indicating that their analysis of our specific wage withholding law, Conn.Gen.Stat. § 52-362, found it inconsistent with 45 CFR §§ 301.100(c)(1)(ii) and 301.100(c)(3).1 Further, OCSE indicated that unless these perceived deficiencies were found in error, or proposals are forthcoming to bring Connecticut into compliance on these issues, they will recommend that our federally approved IV-D State Plan be revoked, with the consequent loss of federal financial participation.
As a condition to its participation in the AFDC program, and in order to remain eligible for federal cost-sharing pursuant to Title IV-D of the Social Security Act (42 U.S.C. § 651, et seq.; Child Support and Establishment of Paternity), and the implementing regulations promulgated by OCSE (45 CFR § 301, et seq.), the State of Connecticut is required to have, and fully implement, a federally approved "State Plan" for its child support enforcement program. 42 U.S.C. §§ 602(a)27; 652(a)(3), (4), (13), 654(13), (20), 655(a); 45 CFR Part 301. The State Plan is a comprehensive statement describing the nature and scope of the child support program and giving assurance that it will be administered in conformity with the specific requirements of federal statutory and regulatory mandates. One such mandatory requirement is that all state plans must provide that the state,
... shall have in effect all of the laws to improve child support enforcement effectiveness which are referred to in ... [42 U.S.C. § 666] ... and ... shall implement the procedures which are prescribed in or pursuant to such laws ...
42 U.S.C. § 654(20); 45 CFR § 302.70
Pursuant to 42 U.S.C. § 666(a)(1), (b) and 45 CFR § 303.100, as they relate specifically to necessary laws and procedures for wage or income withholding, our implementing legislation must include provisions which subject the wages of an absent parent to withholding whenever there is a delinquency equal to the support payable for one month or, if earlier and regardless of payment status, "... on the date the custodial parent requests that such withholding begin ...". 42 U.S.C. § 666(b)(3)(B)(ii), 45 CFR § 303.100(c)(1)(ii). In addition, our Plan (laws) must provide that an obligor may only use "mistakes of fact" as a basis for "contesting" the imposition of wage withholding. 42 U.S.C. § 666(b)(4)(A); 45 CFR § 303.100(C)(3), (d)(1)(iii).
Conn.Gen.Stat. § 52-362 does not specifically provide for wage withholding at the request of the custodial parent. However, neither does it contain a prohibition against compliance with the federal mandate and, as noted below, there are other child support-related statutes which do provide the basis for implementing federal requirements necessary for the receipt of IV-D federal funding. Further, since allegedly delinquent obligors cannot avoid the imposition of wage withholding, even if a modification of the order is requested under Conn.Gen.Stat. § 52-362(e), there is no conflict with applicable federal law. Accordingly, we conclude that Connecticut's wage withholding laws, and related child support legislation, meet the federal requirements.
Custodial Parent Requests For Withholding
Given the significant fiscal implications associated with a determination by the federal government that Connecticut's IV-D State Plan is not in compliance with federal law, the General Assembly has specifically delegated to the Bureau of Child Support Enforcement the necessary powers and responsibilities to ensure that the child support program continues to be administered in full compliance with federal funding prerequisites. In particular, Conn.Gen.Stat. § 17-578(a), in creating the Bureau, provides:
... The bureau shall provide for the ... implementation of all child support services, including the administration of withholding of earnings, in accordance with the provisions of Title IV-D of the Social Security Act, as amended. (Emphasis added).
Subsection (i) of Conn.Gen.Stat. § 17-578 is even more specific in authorizing the Commissioner, through the Bureau, to "... conform to federal requirements necessary for the receipt of federal matching grants and not prohibited by the general statutes". (Emphasis added). In addition, the importance of conformance to federal funding conditions is reflected in Conn.Gen.Stat. § 17-601 which authorizes operations under "any new policy necessary to conform to a requirement of a federal or joint state and federal program while ... [any necessary regulations are being processed]...."
General Statutes § 52-362 is the primary state legislation providing wage withholding procedures for the child support program; however, as subsection (m) thereof provides:
The provisions of this section shall be in addition to and not in lieu of any other remedy available at law to enforce ... a support order." (Emphasis added).
The non-exclusive nature of Conn.Gen.Stat. § 52-362, and the fact that it does not directly prohibit wage withholding at the request of the custodial parent, are both important features of this legislation for purposes of our analysis. Certainly, the legislature's express concerns about ensuring compliance with federal requirements mean that every legitimate presumption must be given to an interpretation which allows the federal mandate to be implemented, even in the absence of an express grant of specific enabling authority. Subsection (b) of Conn.Gen.Stat. § 52-362 requires the issuance of wage withholding orders, immediate or contingent, when orders are entered, modified or when the obligor is before the court in an enforcement proceeding. Subsection (c) outlines the procedure to be followed when an obligor is delinquent on support payments and the balance of the section addresses related matters associated with the imposition of orders under subsections (b) and (c). However, this statute simply does not address, and, therefore, clearly does not prohibit, wage withholding at the request of the custodial parent.
In issuing this opinion, we are aware that you do not have existing procedures for implementing wage withholding orders at the request of custodial parents and that such procedures and policies, sufficient to satisfy due process, would have to be developed in cooperation with the Judicial Branch, particularly the Support Enforcement Division. However, we are of the opinion that you are not dependent on a specific amendment to Conn.Gen.Stat. § 52-362 in order to implement this clear federal mandate.
Contesting Wage Withholding
The second issue raised by OCSE concerns that portion of Conn.Gen.Stat. § 52-362(e) which allows an obligor who has been served with a delinquency notice to "file by motion [for a] modification" of the underlying support order to be enforced by withholding. Since 45 CFR § 301.100(c)(3) only allows the obligor to contest wage withholding based on "mistakes of fact", OCSE takes the position that the allowance of motions for modification occasions delays which are inconsistent with federal law.
For the same reasons outlined in our informal opinion on this issue dated January 8, 1993, we conclude that Conn.Gen.Stat. § 52-362(e) does not conflict with 45 CFR § 301.100(c)(3). The federally mandated procedures for wage or income withholding do provide that "[T]he only basis for contesting a withholding ... is a mistake of fact ... [meaning] ... an error in the amount of current or overdue support or the identity of the alleged absent parent". 45 CFR § 303.100(c)(3); see also 45 CFR § 303.100(d)(1)(iii). Similarly, and in conformance therewith, the only "defense" to wage withholding which an obligor can claim under Conn.Gen.Stat. § 52-362(e) is one "based upon mistake of fact". Our statute does allow an obligor to claim an "exemption" for certain earnings which both state and federal law recognize; Conn.Gen.Stat. § 52-362(f); 45 CFR § 303.100(a)(3), (a)(5), (d)(1)(i). However, such a claim is clearly not the assertion of a defense.
General Statutes § 52-362(e) does allow an obligor who has been served with a delinquency notice to "file by motion [for a] modification" of the underlying support order to be enforced by withholding. It further provides that if a "claim [defense or exemption] or motion [modification] is filed, imposition of the withholding order shall be stayed until the claim or motion is decided ...". Clearly, however, the filing of a modification motion is not a defensive claim and OCSE seems to recognize this by deeming the "delay" to be the only aspect of our procedure which raises compliance concerns.
Under the Family Support Act of 1988, as implemented in Connecticut pursuant to § 1 of P.A. 89-203, all new or modified child support orders are secured by immediate wage withholding orders. As such, even if an obligor were to successfully move for a modification of an older order under Conn.Gen.Stat. § 52-362(e), that modified order would be wage withheld. Since an obligor cannot avoid the imposition of a wage withholding order by moving to modify, at least since 1990, the ability to so move should not be deemed the granting of an additional basis for contesting a wage withholding order. In addition, the expressed concern with "delay" seems to ignore the fact that under § 52-362(e) any motion for modification must be promptly heard and decided. General Statutes § 52-362(d) allows an obligor fifteen (15) days to respond to a delinquency notice. If a motion to modify is filed, § 52-362(e) requires that a decision issue "within forty-five days from the date of the delinquency notice"; typically meaning that a wage withholding order will issue within 30 days of a motion's filing, whether or not the modification is granted. Finally, 45 CFR § 303.100 is silent with respect to time frames and specifically provides that "withholding must be carried out in full compliance with all procedural due process requirements of the State". 45 CFR § 303.100(a)(6).
Your specific question as to whether Connecticut should be deemed to be in compliance with federal wage withholding requirements is answered in the affirmative. The State of Connecticut, like all states administering a IV-D program, must permit wage withholding at the request of the custodial parent and our statutes presently require the implementation of this federal mandate. Further, since obligors cannot avoid wage withholding even if a modification is granted, Conn.Gen.Stat. § 52-362(e) is compatible with 45 CFR 301.100(c)(3).
Very truly yours,
Donald M. Longley
Assistant Attorney General
1 The referenced federal regulations address wage withholding at the request of the custodial parent, and the allowable defenses available to obligors contesting proposed wage withholding, respectively.