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In re Marriage of Hopkins

April 23, 2009

IN RE THE MARRIAGE OF DANNY C. AND SHANNON HOPKINS.
DANNY C. HOPKINS, JR., MOVANT AND RESPONDENT,
v.
SHANNON HOPKINS, RESPONDENT; KERN COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, OBJECTOR AND APPELLANT.



APPEAL from a judgment of the Superior Court of Kern County. Ralph L. McKnight, Jr., Commissioner. (Super. Ct. No. S1501FL579283).

The opinion of the court was delivered by: Cornell, J.

CERTIFIED FOR PUBLICATION

OPINION

Appellant Kern County Department of Child Support Services (the Department) levied on the bank account of Danny Hopkins, Jr. (Danny),*fn1 and a third party, pursuant to Family Code section 17450 et seq.,*fn2 to satisfy child support arrears. The trial court released the levy over the objections of the Department. We conclude that Danny was exempt from levy pursuant to section 17450, subdivision (c)(2) because his sole income was from Social Security disability insurance (SSDI) benefits. Thus, the trial court did not err and we will affirm the order.

FACTUAL AND PROCEDURAL SUMMARY

The facts are not disputed.

Danny was a non-custodial parent and obligated to pay $600 per month in child support. Danny's sole income was from SSDI benefits. In December 2006, the Department obtained a wage assignment order requiring the Social Security Administration to withhold $750 per month for current and past due child support from the benefits due Danny.

In May 2007, the Department was notified that Danny's children were receiving $742 per month from Social Security, an amount that was derived from Danny's SSDI benefits, and which was paid to the custodial parent, Shannon Hopkins (Shannon). Shannon also received a retroactive payment of benefits in the amount of $2,322. Current child support payments were modified to zero effective May 1, 2007, because the monthly payment from Social Security exceeded the monthly child support obligation.

After crediting the retroactive payment from Social Security, child support arrears were $10,804 as of May 2007. The withholding order was amended to require Social Security to withhold $150 per month from the benefits paid to Danny to be applied to the arrearages. The sum of $150 was withheld in June and July 2007. In August 2007, two withholdings occurred, one on August 3 and the other on August 31. Each withholding was in the amount of $150. The August 3 withholding represented the amount withheld from Danny's August SSDI payment; the August 31 withholding was from Danny's September SSDI payment.

The Department credited all amounts withheld toward arrearages but maintained that no payment had been received in September 2007, so Danny was in default on payment of his arrearages. Consequently, pursuant to section 17450 et seq., the Department levied on an account held in the name of Danny and his fiancée, Melissa Bruhanski, and received the amount of $10,746.

Danny claimed that all or a portion of the amounts levied upon should be exempt. Danny and Bruhanski both signed the form claiming an exemption, noting that at least some of the funds levied upon represented unemployment payments received by Bruhanski and that she had three children residing with them.

A hearing was held on December 28, 2007, regarding Danny's claim of exemption. The Department appeared through counsel; Danny appeared in propria persona.

During the hearing, the trial court asked whether the Department was crediting Danny for the amount of derivative benefits being paid by Social Security to the custodial parent that were in excess of the monthly support obligation as required by law. The Department indicated that it was not applying the $142 per month in excess benefits toward the arrearage as it was unaware of its obligation to do so.

The Department also verified an order for a wage assignment was in place with Social Security. Danny testified that the sum of $150 per month was being deducted from his SSDI benefits, with two deductions being taken in August 2007 because of the timing of the issuance of the Social Security checks. Danny testified that the sum of $150 was deducted on August 3 from the August 2007 SSDI payment and the sum of $150 was deducted on August 31 from the September 2007 SSDI payment.

Danny also testified regarding the source of the money in the account levied upon by the Department. The funds in the account were accumulated unemployment and child support payments received by Bruhanski, with a small amount of the funds coming from severance pay to Danny when he was forced to quit working.

Danny further testified that when he received the notice from his bank that the account had been levied upon, he contacted the Department to confirm the amounts that had been deducted and that he had made a payment each month toward arrears. He was told by the person with whom he spoke that he was current on his payments toward the arrears.

The trial court stated the Department was "complaining . that they got $150 a few days too early as opposed to too late or not at all. I hardly think that in equity and justice I can regard that as being a missed payment which triggers the right to then levy on a bank account." The trial court went on to state, "[T]he Department seems to have overlooked the Social Security Act, which gives [Danny] the right, by law, to have credited ...


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