Davis v. North Carolina Department of Human Resources , 126 N.C. App. 383 ( 1997 )

LEWIS, Judge.

At issue in this appeal is whether an individual who has paid child support according to a court order but still owes arrears may have his federal and state tax refund intercepted by state agencies.

The facts in this case are undisputed. In January 1987, petitioner was adjudged to be the natural father of LaToyah Renee Davis, born 14 June 1984. He was ordered to pay $100.00 per month in child support and $10.00 per month towards the $1,391.00 in past support paid by respondent for the minor child. Petitioner had complied with this order as of the hearing date.

On 7 October 1993, a Notice of Intent to Intercept and Statement of Account was sent to petitioner stating that he owed $507.00 in child support arrears as of 1 July 1993. It further notified petitioner that his state and federal income tax refunds would be intercepted to pay these arrearages.

On 22 May 1994, petitioner sought a contested case hearing alleging that the tax intercept was improper because he had consistently made his court-ordered support payments. Respondent moved for summary judgment. An administrative law judge (“AU”) recommended summary judgment for petitioner. However, the final agency decision reversed the ALJ and granted summary judgment for respondent. Petitioner appealed to Cumberland County Superior Court, which affirmed the agency’s ruling. Petitioner now appeals to this Court.

Our standard of review in reviewing an agency decision depends upon the nature of the alleged error. Walker v. N.C. Dept. of Human Resources, 100 N.C. App. 498, 502, 397 S.E.2d 350, 354 (1990), disc. review denied, 328 N.C. 98, 402 S.E.2d 430 (1991). If the petitioner contends, and we agree, that the agency’s decision was based on an error of law, including an error in statutory interpretation, our review is de novo and we may substitute our own judgment for that of the agency. Friends of Hatteras Island v. Coastal Resources Comm., 117 N.C. App. 556, 567, 452 S.E.2d 337, 344 (1995).

On appeal, we find petitioner raises questions of statutory interpretation. Our review will be de novo. Petitioner contests respondent’s ability to intercept his tax refunds since a court of competent jurisdiction has already determined how his arrears are to be repaid and he has faithfully followed the court’s order. For this reason, he argues that respondent is not authorized to intercept his federal tax refund under 42 U.S.C. § 664 or his state tax refund under N.C. Gen. Stat. section 105A-3(b).

NORTH CAROLINA STATE INCOME TAX REFUND

We first address the propriety of intercepting petitioner’s state income tax refund. N.C. Gen. Stat. section 105A establishes a procedure by which debts owed to state agencies are deducted from state tax refunds. N.C. Gen. Stat. § 105A-1 (1995). G.S. 105A specifically provides:

All claimant agencies shall submit, for collection under the procedure established by this Article, all debts which they are owed, except debts that they are advised by the Attorney General not to submit because ... an alternative means of collection is pending and believed to be adequate. . . .

N.C. Gen. Stat. § 105A-3(b) (1995) (emphasis added). Petitioner contends that the emphasized language imposes an “affirmative duty” upon respondent to prove that the existing means of collection is inadequate and to obtain the Attorney General’s advice before utilizing tax interception as a method of debt collection under the statute. We disagree.

“If the language of the statute is clear, this Court must implement the statute according to the plain meaning of its terms.” Roberts v. Young, 120 N.C. App. 720, 724, 464 S.E.2d 78, 82 (1995). The plain meaning of the above statutory language clearly imposes a duty upon a state agency to intercept tax refunds of all persons who owes it money except in cases where the Attorney General instructs otherwise. Despite petitioner’s contentions, the current statute does not impose a duty on the part of the agency to approach the Attorney General for an exception, nor does it provide for an exception in every case where an individual is in compliance with a court-ordered payment plan, even when the amount of money at issue is quite small. This is the statute’s plain meaning; if the General Assembly intends otherwise, it must amend the statute. Our job is to interpret not to legislate. E.g. Pinehurst, Inc. v. O’Leary Bros. Realty, 79 N.C. App. 51, 63, 338 S.E.2d 918, 925, disc. review denied, 316 N.C. 378, 342 S.E.2d 896-97 (1986).

In the present case, it is clear that petitioner owed the state a debt. Both sides agree that the Attorney General did not except petitioner from tax refund interception. Therefore, under the terms of the statute, we must hold that respondent’s interception of petitioner’s state tax refund was proper, even mandated, under G.S. 105A-3(b). The trial court’s ruling on this issue is affirmed.

UNITED STATES INCOME TAX REFUND

On the issue of the propriety of the interception of his federal tax refund, petitioner argues that the arrears he owes do not constitute “past-due support” as required before intercept by 42 U.S.C. § 664. The federal and state laws are quite different. 42 U.S.C. § 664 defines “past-due support” as “the amount of a delinquency, determined under a court order.” 42 U.S.C. § 664(c) (1985). Petitioner maintains that he has not been delinquent in paying under the court order and therefore does not owe “past-due support.” We agree.

“Delinquency” is not defined in the statute. However, Black’s Law Dictionary defines it as “[fjailure, omission, violation of law or duty. Failure to make payment on debts when due. State or condition of one who has failed to perform his duty or obligation.” Black’s Law Dictionary 428 (6th ed. 1990). When put into the context of 42 U.S.C. § 664, this definition necessarily requires that a supporting parent fall behind in his or her court-ordered payments before having his or her federal tax refund intercepted.

Other courts which have interpreted the definition of “past-due support” have reached the same conclusion. One court has stated, “The delinquency arises when the debtor falls behind in [the] court ordered payments.” In re Biddle, 31 B.R. 449, 452 n. 3 (Bankr. N.D. Iowa 1983). Another court concluded that the federal intercept program does not apply where the supporting parent has continually complied with his court-ordered support obligation, but nonetheless owes arrears due to the retroactive effect of a modified order. Laub v. Zaslavsky, 534 A.2d 1090, 1092-93 (Pa. Super. Ct. 1987), aff’d per curiam, 565 A.2d 158 (Pa. 1989).

After analyzing the dictionary definition of delinquency and decisions in other jurisdictions interpreting 42 U.S.C. § 664, we conclude that interception of petitioner’s federal tax refund in this case was improper. He has continually paid his court-ordered support and did not owe “past-due support” as defined by the statute. The trial court’s ruling on this issue is reversed.

CROSS-ASSIGNMENT OF ERROR

Finally, we address respondent’s cross-assignment of error. Respondent contends that the trial court erred in failing to dismiss the petition for judicial review because proper service was not obtained. Respondent argues that petitioner did not serve the proper person according to Rule 4 of the North Carolina Rules of Civil Procedure and therefore the trial court did not have personal jurisdiction over it. We disagree.

N.C. Gen. Stat. section 150B-46 provides: “Within 10 days after the petition is filed with the court, the party seeking the review shall serve copies of the petition . . . upon all who were parties of record to the administrative proceedings.” N.C. Gen. Stat. § 150B-46 (1995). Rule 4 provides that service upon an agency of the State should be made by serving the summons and complaint on its process agent. N.C.R. Civ. P. 4(j)(4) (1996 Cum. Supp.).

“[W]here one statute deals with a particular subject or situation in specific detail, while another statute deals with the subject in broad, general terms, the particular, specific statute will be construed as controlling, absent a clear legislative intent to the contrary.” Nucor Corp. v. General Bearing Corp., 333 N.C. 148, 154-55, 423 S.E.2d 747, 751 (1992). In the present case, G.S. 150B-46 deals with the service of a petition for judicial review of an agency decision, while Rule 4 applies generally to service in all civil matters. Therefore, since G.S. 150B-46 is more specific and there is no legislative intent to the contrary, its terms control. If the General Assembly had intended that petitions for judicial review be served only upon an agency’s process agent, it could have put language mimicking that of Rule 4 in G.S. 150B-46. It did not. Therefore, we conclude that petitioner’s service upon C. Robin Britt, Secretary of the Department of Human Resources, the person at the agency to whom the Office of Administrative Hearing sent copies of its orders during the administrative proceeding, was proper. We overrule respondent’s cross-assignment of error.

In summary, we affirm the trial court’s ruling approving respondent’s interception of petitioner’s state income tax refund and hold that summary judgment was proper for respondent on that issue. However, we reverse the trial court’s conclusion that his federal refund could also be intercepted and remand for entry of summary judgment in favor of petitioner on this issue.

Affirmed in part; reversed in part and remanded.

Judge WYNN concurs with separate opinion. Judge MARTIN, Mark D. concurs in part and dissents in part.