Desrouchers v. Desrouchers

Desrochers v. Desrochers (2000-046); 173 Vt. 312; 795 A.2d 1171

[Filed 15-Feb-2002]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal  revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of  Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press.


                                No. 2000-046


Robin Desrochers (Ashline)	                 Supreme Court

                                                 On Appeal from
     v.	                                         Franklin Family Court


Tim E. Desrochers	                         May Term, 2001
(Office of Child Support, Appellant)

Ben W. Joseph, J.

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, section 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 obligation that has accrued
  under such  assignment."  Id.  OCS contends that the above language, in
  conjunction with mother's assignment  agreement, permitted it to retain
  amounts collected under the 1994 judgment even after her grant  terminated. 
  OCS concedes, however, that under an amendment to 42 U.S.C. § 657, it no
  longer may  retain payments towards arrears after a recipient's benefits
  are terminated if those arrears were not  collected by October 1, 2000. 
  Therefore, OCS's argument regarding the law governing this case is 
  isolated in time.

       While we question the interpretation OCS gives the language of §
  302.51(f) regarding arrears  accruing before a grant begins, we need not
  decide whether it generally allowed OCS to continue to  collect arrears
  after termination of benefits pursuant to assignment agreements, because
  the terms of  the assignment agreement executed by mother in this case did
  not encompass the amount awarded to  her in the family court's 1994
  judgment.  The agreement she signed stated: 

    I hereby assign all my support rights for any and all children for 
    whom I am requesting assistance and my rights to receive support 

 

    from the above named noncustodial parent to the [department] in 
    order to receive a grant of Aid to Needy Families with Children 
    (ANFC) or Medicaid. . . . If the Office of Child Support collects
    any  past due support, the money will be used to reimburse [the 
    department] for my ANFC before any support is paid to me.

  The agreement makes no mention of mother's right to collect on existing
  court judgments, or on the  1994 judgment in particular.

       We have previously noted that, although child support amounts become
  judgments against a  parent as they come due under an existing child
  support order, 15 V.S.A. § 606(b), when arrears are  actually reduced to a
  judgment, that judgment takes on legal significance distinct from that of
  the  original child support order.  Hixson v. Plump, 167 Vt. 202, 207, 704 A.2d 1159, 1162-63 (1997)  ("judgments" automatically arising under §
  606(b) are markedly different from a judgment  adjudicating the amount of
  arrears actually due).   It is treated just like any other judgment.  See
  id.,  704 A.2d  at 1162; see also 15 V.S.A. § 606(a) (judgment for past due
  child support "shall be as  binding and as enforceable in all respects as
  though rendered in any other civil action"). 

       When the family court entered judgment regarding father's arrears,
  including the portion to be  paid mother and its priority to amounts owed
  OCS because of previous benefits paid to her, and it  was not appealed, it
  became a final judgment on the merits.  The mere act of reapplying for
  benefits  did not undo the effect of the court's judgment, nor mother's
  rights under the judgment.  Like any  other court judgment, however, it was
  potentially assignable, but only where the requisite elements  of an
  assignment were present.  An assignment agreement must clearly reflect an
  intent to assign the  right in question.  See Twin Valley Motors, Inc. v.
  Morale, 136 Vt. 115, 118, 385 A.2d 678, 680  (1978) (noting that included
  in the "essential ingredients" of a valid assignment of a right are a 
  complete authorization amounting to a transfer of the obligation and an
  intentional establishment of  an irrevocable right in the assignee); In re
  Kelton Motors, Inc., 97 F.3d 22, 28 (2d 

 

  Cir. 1996) (noting in case determining whether debtor in bankruptcy
  proceeding possessed any legal  or equitable interest in property under
  Vermont state law, that, although an effective assignment  requires no
  particular words of art, agreement must still reflect the intent of the
  owner of a claim to  transfer it); see also Herzog v. Irace, 594 A.2d 1106,
  1108 (Me. 1991) ("For an assignment to be  valid and enforceable . . . the
  assignor must make clear his intent to relinquish the right to the 
  assignee . . . ."). 

       The above-quoted language of the assignment agreement cited by OCS may
  have assigned  any support rights accruing under the existing child support
  order, but the language is neither clear  enough nor specific enough to
  effect an assignment of mother's rights under the family court's  separate
  1994 judgment.  As noted above, the agreement makes no mention of any
  judgment.  If  OCS had wished for mother to assign her rights under the
  judgment in addition to her general right to  support under the existing
  child support order, it could have included language doing so.  In the 
  absence of such language, OCS cannot claim such a benefit.

       Modifying the family court's order to award Robin Ashline the entire
  amount to be paid to  her under the court's March 1994 judgment retained by
  the Office of Child Support, and affirmed as  modified.


                                       FOR THE COURT:


                                       _______________________________________
                                       Associate Justice