Author: Jon B. Robinson
An oft-asked question is whether child support payments can be garnished from Longshore and Harbor Workers’ Compensation Act (“LHWCA”) or Defense Base Act (“DBA”) workers’ compensation benefits. More likely than not, the answer is, “No.”
Section 16 of the LHWCA, which applies to the DBA, provides:
No assignment, release or commutation of compensation or benefits due or payable under this Act, except as provided by the Act, shall be valid, and such compensation and benefit shall be exempt from all claims of creditors from levy, execution, and attachment or other remedy for recovery or collection of a debt, which exemption may not be waived.
This provision, which is known as the anti-assignment or anti-alienation provision, prevents child support judgments from attaching to a disability award. It has been state courts and not federal courts which have commented on the child support issue. The Louisiana Supreme Court expressly stated that a wife could not garnish her ex-husband’s LHWCA benefits for past due child support. The court reasoned that to allow garnishment of LHWCA benefits would result in a jurisprudential exception to the LHWCA, which is not permitted pursuant to the “strong” language of the LHWCA. See Thibodeaux v. Thibodeaux, 454 So. 2d 813 (La. 1985).
The reasoning in Thibodeaux was accepted and applied by the Supreme Court of New York, Richmond County. In Spitalieri v. Spitalieri, 593 N.Y.So.2d 172, the court expressed sympathy for the plaintiff’s plight but nonetheless determined that LHWCA benefits could not be assigned. Any remedy to the child support issue must be addressed by Congress, and not state courts.
Although the majority of courts will not withhold child support payments from LHWCA benefits, at least one court will. The District Court of Appeal of Florida, Third District, determined that child support payments could be withheld. See Cigna Property & Casualty v. Ruiz, 834 So. 2d 234 (Fla. 3 Dist. Ct. App. 2002). In holding Section 16 inapplicable to child support arrearages, the court reasoned that child support payments are neither debts nor payments to creditors:
It is clear, under Florida law, that a claim for child support is not the claim of a creditor. See Department of Revenue v. Springer, 800 So. 2d 700, 701 (Fla. 5th DCA 2001) (holding that claims for child support arrearages not a claim of a creditor). See also Bryant v. Bryant, 621 So. 2d 574, 576 (Fla. 2d DCA 1993) (holding that exemption of workers’ compensation claims from claims of creditors does not extend to claim based on award of child support). Both Springer and Bryant involved claims for child support arrearages. In this case, where the claim is for “on-going child support,” it is clear that the deduction is not the claim of a creditor.
Moreover, it is equally clear that a child support obligation is not a debt. See Gibson v. Bennett, 561 So. 2d 565, 570 (Fla. 1990) (stating that: “a support obligation is viewed as a personal duty, not only to a former spouse or child, but to society generally.”) . . . .
After the Florida Supreme Court denied a request for certiorari, Cigna challenged the Florida Third District’s Ruiz case in a federal court…to no avail. The Rooker–Feldman doctrine (which generally prevents federal court review of a state court’s decision) required dismissal of the action.
It is the Florida Third District’s Ruiz decision which prevents a definitive answer regarding the child support issue. Without question, states have an inherent interest in protecting the children within their borders. But the more persuasive cases, Thibodeaux and Spitalieri, argue that Congress opposed assignment of LHWCA benefits. Consequently, a clear answer to the child support quagmire can only be given by Congress, which can either side with Thibeodeaux and Spitalieri or Ruiz.
How likely is Congress to amend the Anti-Assignment Provision? If the most recent proposed amendments are a good barometer, then Congress is very likely to amend Section 16. Senate Bill 669 proposed amending Section 16 to state: “Benefits due or payable under this Act shall be subject to withholding and any other legal process in the same form and manner, and to the same extent, as withholding and other legal processes apply under Section 206 of the Employment Retirement Income Security Act of 1974 (29 U.S.C. 1056).” If Section 16 of the LHWCA is amended as Senate Bill 669 proposes, then child support payments could be garnished from LHWCA or DBA benefits. Until then, the reasoning in Thibodeaux is likely to persuade a court reviewing the issue, thus preventing assignment.