Duran v. New Mexico Department of Human Services

HERNANDEZ, Judge

(dissenting).

I respectfully dissent.

The decision of the Department should be reversed on the basis of Barela v. New Mexico Department of Human Services, 94 N.M. 288, 609 P.2d 1244 (Ct.App.1979), cert. denied December 14, 1979, and Nolan v. de Baca, 603 F.2d 810 (10th Cir. 1979).

The relevant HEW regulation, 45 C.F.R., § 233.90(a)(1), provides in part:

In establishing financial eligibility and the amount of the assistance payment, only such net income as is actually available for current use on a regular basis will be considered, and the income only of the parent described in the first sentence of this paragraph will be considered available for children in the household in the absence of proof of actual contributions; .... [Emphasis added.]

While the regulation clearly permits a state to consider the income of the natural or adoptive parent in computing AFDC assistance, it is my opinion, based on the above cited provision, that it is the intent of the federal regulation that only actual income be computed. While a spouse has a present proprietary interest in one-half of the community income under New Mexico community property law, this legal concept of income does not necessarily mean that the spouse has actual income. The New Mexico regulation makes an impermissible assumption of actual income.