In Re the Marriage of Mikesell , 53 State Rptr. 418 ( 1996 )

NO. 95-393
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
IN RE THE MARRIAGE OF
CAROL L. MIKESELL,
Petitioner and Respondent,
and
LAURENCE R. MIKESELL,
Respondent and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John S. Henson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Terry G. Sehestedt, Attorney at Law, Missoula,
Montana
For Respondent:
Clinton H. Kammerer, Attorney at Law, Missoula,
Montana
Submitted on Briefs: January 25, 1996
Decided: May 6, 1996
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Laurence Mikesell (Laurence) appeals from the opinion and
order entered by the Fourth Judicial District Court, Missoula
County, empowering the Social Security Administration (SSA) to
garnish his social security benefits for delinquent child support
and maintenance payments due Carol Mikesell (Carol) pursuant to
their dissolution decree. Addressing only a portion of the order,
we reverse.
The sole issue on appeal is whether the District Court erred
in concluding that social security benefits may be garnished for
unpaid maintenance accruing after a corresponding child support
obligation terminates, but remains unpaid.
Laurence and Carol married on December 17, 1965, in Missoula,
Montana. Their one child, Teddi, was born in 1973. In 1991,
Carol petitioned for dissolution of the marriage and, after
Laurence failed to appear or answer, the District Court entered his
default and a final dissolution decree. Laurence moved to set
aside the decree entered on his default, the District Court denied
the motion and Laurence appealed. We affirmed in In re Marriage of
Mikesell (1993), 257 Mont. 482, 850 P.2d 294.
The final decree designated Carol as Teddi's primary
residential parent while Teddi completed high school and required
Laurence to pay $250 per month child support for that seven-month
period. It also required him to pay Carol $500 per month
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maintenance for five years. Laurence did not make any of the child
support or maintenance payments.
In 1995, Carol moved the District Court for an order
determining child support and maintenance arrearages. Laurence
responded by admitting that Carol's calculations of the arrearage
amounts were correct. The District Court entered an order
determining child support arrearages of $1,750 and maintenance
arrearages of $21,000 through March of 1995, for a total amount due
Carol of $22,750, plus interest.
Carol subsequently requested the District Court to issue an
order directing the SSA to withhold the total delinquent child
support and maintenance amounts from Laurence's social security
benefits. Laurence contended that his benefits could be garnished
only for maintenance which accrued during the seven months of
court-ordered child support while Carol was Teddi's custodial
parent. The District Court granted Carol's request and empowered
the SSA to withhold the total amount of unpaid child support and
maintenance. Laurence appeals.
Did the District Court err in concluding that social security
benefits may be garnished for unpaid maintenance accruing after a
corresponding child support obligation terminates, but remains
unpaid?
We clarify at the outset that Laurence does not challenge the
District Court's order insofar as it relates to garnishment of his
social security benefits for the seven months of child support and
for the seven months of maintenance which became due during the
time Carol was Teddi's residential custodian. Thus, we do not
address that portion of the District Court's order authorizing
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garnishment of Laurence's social security benefits for child
support in the amount of $1,750 ($250 x 7) and maintenance in the
amount of $3,500 ($500 x 7).
Generally, social security benefits are exempt from
"execution, levy, attachment, garnishment, or other legal process.
. . . I, 42 U.S.C. § 407(a). The statute "imposes a broad bar
against the use of any legal process to reach all social security
benefits." Dean v. Fred's Towing (1990), 245 Mont. 366, 371, 801
P.2d 579, 582 (citing Philpott v. Essex County Welfare Bd. (1973),
409 U.S. 413, 93 s.ct. 590, 34 L.Ed.2d 608). However, legal
process brought for the enforcement of a party's legal obligations
to provide child support or make maintenance payments is a specific
exception to the broad exemption from garnishment provided to
social security benefits by 42 U.S.C. § 407. 42 U.S.C. § 659.
Section 659 does not create a statutory right to relief via
garnishment; it merely removes the obstruction of sovereign
immunity from a garnishment proceeding otherwise authorized by
state law. See Williamson v. Williamson (Ga. 1981), 275 S.E.2d 42,
45, cert. denied, 454 U.S. 1097.
In Montana, both property exempt from execution and specific
exceptions to those exemptions are contained in § 25-13-608, MCA.
Subsection (1) of the statute exempts federal social security
benefits to which the judgment debtor is entitled from execution;
subsection (2) provides in pertinent part:
(2) Veterans' and social security legislation benefits
based upon remuneration for employment, as defined in 42
U.S.C. 662(f), are not exempt from execution if the debt
for which execution is levied is for:
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(a) child support; or
(b) maintenance to be paid to a spouse or former
spouse if the spouse or former spouse is the custodial
parent of a child for whom child support is owed or owing
and the judgment debtor is the parent of the child.
Section 25-13-608, MCA.
The District Court concluded that § 25-13-608(2) (b), MCA,
permits social security benefits to be garnished for all unpaid
maintenance if child support amounts remain owing. In doing so,
the court rejected Laurence's argument that the statute does not
authorize garnishment for maintenance which became owing after
Carol ceased to be Teddi's custodian. We review a district court's
conclusion of law to determine whether it is correct. Carbon
County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898
P.2d 680, 686 (citation omitted).
The resolution of the issue before us rests on the proper
interpretation of § 25-13-608(2) (b), MCA. In construing a statute,
"the office of the judge is simply to ascertain and declare what is
in terms or in substance contained therein, not to insert what has
been omitted or to omit what has been inserted." Section l-2-101,
MCA. The intention of the legislature must be pursued. Section l-
2-102, MCA. If the language of the statute is clear and
unambiguous, it requires no further interpretation; we will not
resort to other means of interpretation unless the legislature's
intent cannot be determined from the plain words of the statute.
Clarke v. Massey (1995), 271 Mont. 412, 416, 897 P.2d 1085, 1088
(citation omitted).
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Under § 25-13-608(2) (b), MCA, social security benefits can be
garnished for maintenance to be paid to a spouse or former spouse
under the following three conditions: 1) the spouse or former
spouse is the custodial parent of a child; 2) child support is owed
or owing for that child; and 3) the judgment debtor is the parent
of the child for whom child support is owed or owing. We address
the conditions in reverse order.
The third condition, that the judgment debtor be the parent,
is clear and unambiguous. Moreover, that Laurence satisfies this
condition is not in dispute.
The second condition, that child support is owed or owing,
provided the basis for the District Court's conclusion that
Laurence's social security benefits could be garnished for the
entire amount of unpaid maintenance. "Owed" is defined as "[t]o be
bound to do . . something, especially to pay a debt;" "owing"
means 'I [ulnpaid." Black's Law Dictionary 1105 (6th ed. 1990)
This clear and unambiguous condition also is satisfied here by the
$1,750 in court-ordered child support which Laurence concedes
remains unpaid.
The first condition contained in § 25-13-608(2) (b), MCA,
limits garnishment of social security benefits for maintenance to
maintenance to be paid to a former spouse who "is" the custodial
parent of the child for whom child support is owed. The language
of the statute clearly and unambiguously requires the former spouse
to be the custodial parent during the period the maintenance to be
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paid, and for which social security benefits can be garnished,
accrues.
In interpreting statutes, we must give language its plain
meaning. Stansbury v. Lin (1993), 257 Mont. 245, 249, 848 P.2d
509, 511 (citation omitted). Moreover, we cannot properly
interpret a statute so as to omit any portion thereof. See § l-2-
101, MCA. Reading all portions of the statute at issue together,
we conclude that § 25-13-608(2) (b), MCA, authorizes garnishment of
a parent judgment debtor's social security benefits for maintenance
to the extent that the maintenance is or was to be paid to the
former spouse while the former spouse was the custodial parent of
the child to whom child support is due and owing.
In this case, child support for Teddi from Laurence was
ordered in 1991 for a seven-month period. None of that child
support was paid and it remains owed and owing under § 25-13-
608(2) (b), MCA. Maintenance from Laurence to Carol also was
ordered in 1991, but for a period of five years; like the child
support, none of the maintenance was paid. However, Carol was
Teddi's custodial parent for only seven months of the period during
which maintenance was to be paid to her. Thus, the three
conditions under which social security benefits may be garnished
for maintenance pursuant to § 25-13-608(2) (b), MCA, were satisfied
only during the seven-month period for which Carol was Teddi's
custodial parent. After Carol was no longer Teddi's custodial
parent, the first condition of § 25-13-608(2) (b), MCA, for
garnishment of social security benefits for maintenance--that the
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maintenance accrue while the former spouse is the custodial parent-
-was no longer satisfied.
We conclude that Laurence's social security benefits can be
garnished for maintenance only for the amount of maintenance which
accrued during the period that Carol was Teddi's custodial parent.
We hold, therefore, that the District Court erred in concluding
that social security benefits are subject to garnishment for all
maintenance that accrues while an unpaid child support obligation
exists.
Reversed and remanded for the entry of an order consistent
with this opinion.
We concur:
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