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DIOTTE v. BLUM

April 2, 1984.

Charles F. DIOTTE, Individually and on behalf of all others similarly situated, Plaintiff,
v.
Barbara BLUM, Individually and as Commissioner of the New York State Department of Social Services, Lillian Roberts, Individually and as Industrial Commissioner of the State of New York, John J. Fahey, Individually and as Commissioner of the Albany County Department of Social Services, Defendants.



The opinion of the court was delivered by: MINER

MEMORANDUM-DECISION and ORDER

MINER, District Judge

 I

 This action arises out of a challenge to § 49-b of the New York Personal Property Law which allows for "income deduction" from an individual's state unemployment insurance benefits for purposes of child support payments.The complaint is brought pursuant to 42 U.S.C. § 1983 and alleges that the New York statute deprived plaintiff of his due process and equal protection rights under the United States Constitution. Additionally, the complaint alleges that the New York scheme conflicts with section 454(19) of the Social Security Act, 42 U.S.C. § 654(19), and § 48-b of the New York Personal Property Law. Jurisdiction is predicated upon 28 U.S.C. § 1343, as well as upon principles of pendent jurisdiction. Before this Court is plaintiff's motion for partial summary judgment, Fed.R.Civ.P. 56(a), as well as the state defendants' motion for summary judgment, Fed.R.Civ.P. 56(b).

 II

 A. Statutory framework

 A proper understanding of the instant challenge requires at the very least a brief survey of the labyrinth of federal and state statutory provisions which serve as its predicate. The starting point for purposes of these motions is the federal public assistance program of Aid to Families with Dependent Children ("AFDC"), 42 U.S.C. §§ 601-615, which requires that any applicant for or recipient of such aid assign the state his or her right to receive any support payments from any other person in accordance with the state's federally approved child support enforcement program. 42 U.S.C. § 602(26). The federal child support enforcement program, 42 U.S.C. §§ 651-665, sets for the extensive requirements any such state program must meet. See 42 U.S.C. § 654. Of particular relevance here is 42 U.S.C. § 654(19), which mandates that a state plan for child and spousal support

 provide that the agency administering the plan --

 (A) shall determine on a periodic basis, from information supplied pursuant to section 508 of the Unemployment Compensation Amendments of 1976, whether any individuals receiving compensation under the State's unemployment compensation law (including amounts payable pursuant to any agreement under any Federal unemployment compensation law) owe child support obligations which are being enforced by such agency, and

 (B) shall enforce any such child support obligations which are owed by such an individual but are not being met --

 (i) through an agreement with such individual to have specified amounts withheld from compensation otherwise payable to such individual and by submitting a copy of any such agreement to the State agency administering the unemployment compensation law, or

 (ii) in the absence of such an agreement, by bringing legal process (as defined in section 662(e) of this title) to require the withholding of amounts from such compensation.

 Pursuant to and in accordance with these federal requirements, New York State has adopted its own child support enforcement program. Section 349-b of the New York Social Services Law mandates, as a condition of eligibility for public assistance under the State's Aid to Dependent Children program N.Y.Soc.Serv.Law §§ 343-362 (McKinney 1983), an assignment of support rights to both the state and an appropriate social services district.

 The organizational and procedural functions of the local social services districts in the enforcement program are set forth in N.Y.Soc.Serv.Law §§ 111-a to 111-j (McKinney 1983). Of particular importance here is § 111-h providing for Support Collection Units ("SCUs"):

 1. Each social services district shall establish a support collection unit in accordance with regulations of the department to collect, account for and disburse funds paid pursuant to any order of support issued under article four, five, or five-A of the family court act.

 2. The support collection unit shall inform the petitioner and respondent of any case in which a required payment has not been made within two weeks after it was due and shall assist in securing voluntary compliance with such orders or in preparation and submission of a petition for a violation of a support order.

 Of equal importance is § 111-j which provides, in relevant part:

 1. (a) The department shall determine on a periodic basis whether any individual receiving unemployment insurance benefits pursuant to article eighteen of the state's labor law owes child support obligations which are being enforced by the department or the child support enforcement unit of a social services district and shall enforce any child support obligations which are owed by such individual but are not being met through an agreement with such individual to have specific amounts withheld from such benefits otherwise payable to such individual and by submitting a copy of such agreement to the New York state department of labor.

 (b) In the absence of such an agreeement, the department shall enforce any child support obligations as authorized by the court in any order establishing such obligations and as otherwise provided by law.

 Finally, the statute directly in issue here, N.Y.Pers.Prop.Law § 49-b (McKinney Supp.1983-1984), provides:

 1. (a) When a person is ordered by a court of record to pay for the support of his children under the age of twenty-one, and/or spouse, and/or former spouse, the court, at the time an order of support is made or any time thereafter, upon a showing of good cause, shall order his employer, further employer, former employer, the auditor, comptroller, or disbursing officer of any pension fund, the state of New York or any political subdivision thereof, or the United States to deduct from all monies due or payable to such person, the entitlement to which is based upon remuneration for employment, past or present, such amounts as the court may find to be necessary to comply with its order for the support of his or her children under the age of twenty-one and/or his or her spouse, and/or former spouse, as well as any accumulated amount in arrears. In determining good cause, the court may take into consideration evidence of the degree of the respondent's past financial responsibility, credit references, credit history, and any other matter the court considers relevant in determining the likelihood of payment in accordance with the support order. Proof that the respondent is three payments delinquent establishes a prima facie case against the respondent, which can be overcome only by proof of respondent's inability to make the payments. Unless such presumption is overcome, the court shall order the respondent's employer, former employer, the auditor, comptroller, or disbursing officer of any pension fund, to deduct from said employee's wages, salary or commission or pension such amounts as the court may find to be necessary to comply with the order of support as well as any accumulated amount in arrears.

 (b) When an order for support is made which orders that the payment be made to the support collection unit, the court, at the time such order of support is made, shall order the respondent's employer, future employer, former employer, the auditor, comptroller, or disbursing officer of any pension fund, the state of New York or any political subdivision thereof, or the United States to deduct from all monies due or payable to such person, the entitlement to which is based upon remuneration for employment, past or present, such amounts as the court may find to be necessary to comply with its orders for the support of his or her children under the age of twenty-one, and/or his or her spouse and/or former spouse, provided however that any such order shall provide that no such deduction shall be made unless and until the support collection unit established by the appropriate social services district has determined that such person's support payment arrears equal or exceed the total amount of monies payable in a specified number of payments determined by the court in the support order and a copy of the income deduction order and determination has been served upon such person's employer, future employer, former employer, the auditor, comptroller or disbursing officer of any pension fund, the state of New York or any political subdivision thereof, or the United States; and provided that such person shall be given notice of such determination at least fifteen days prior to service of such order and determination on such employer, future employer, former employer, the auditor, comptroller or disbursing officer of any pension fund, the state of New York or any political subdivision thereof, or the United States, and if such person pays all arrearages within such fifteen day period, such order and determination shall not be served and no deduction shall be required by reason of such determination, but such payment shall not affect or otherwise limit any determination made as a result of any subsequent delinquencies. Such employer, future employer, former employer, the auditor, comptroller or disbursing officer of any pension fund, the state of New York or any political subdivision thereof, or the United States shall deduct the amount as ordered from the monies due or payable and forward it monthly as directed in the order.

 B. Background

 Plaintiff commenced this action *fn1" on May 20, 1982 seeking declaratory and injunctive relief as well as monetary damages in the amount of $25,000 stemming from alleged violations of his constitutional rights. The second amended complaint names as defendants Barbara Blum, individually and as Commissioner of the New York State Department of Social Services; Lillian Roberts, individually and as Industrial Commissioner of the State of New York; and John J. Fahey, individually and as Commissioner of the Albany County Department of Social Services. *fn2"

 Plaintiff Charles Diotte was divorced from his wife of fifteen years, Marlene, in August of 1978. Charles and Marlene then lived separately until a reconciliation in April of 1982. Prior to the reconciliation, Marlene had been receiving a grant of public assistance for herself and the couple's five children. On May 28, 1981, the Albany County Family Court issued a support order directing Charles to pay seventy-five dollars a week plus twenty-five dollars a week for arrearages toward his children's support. Because the children and their mother were recipients of public assistance under AFDC, 42 U.S.C. §§ 601-615, the support order directed plaintiff to make payments directly to the Albany County Support Collection Unit ("SCU"). In the same proceeding, the court ordered income deduction pursuant to N.Y.Pers.Prop.Law § 49-b whereby plaintiff's employer was to be directed to withhold $100.00 a week from plaintiff's wages and to pay such amount to SCU if plaintiff failed to make three support payments. *fn3" This order never was forwarded to plaintiff's employer. *fn4" The order also provided that plaintiff was to report any change in his employment or residence to SCU.

 Sometime in November of 1981, plaintiff's employment was terminated. After applying for unemployment insurance benefits, plaintiff was determined to be eligible at a rate of ninety-four dollars a week. Plaintiff received his first benefit payment for the week ending November 22, 1981, but apparently never notified SCU of the change in his employment status.

 Already unable to meet his support obligations, Charles Diotte's financial situation was soon to worsen. On November 19, 1981, SCU sent a "determination of missed payments" to the New York State Unemployment Insurance Office ("UIO"), advising that it was required to withhold $100.00 a week from plaintiff's unemployment benefits and to pay that amount to SCU. UIO responded on November 20th that it could not comply with the request because plaintiff was not receiving any benefits at that time.

 On January 14, 1982, SCU sent plaintiff a notice pursuant to N.Y.Pers.Prop.Law § 49-b(1)(b) advising him that "an automatic wage deduction will be imposed on your salary within fifteen (15) days if you fail to either pay your delinquency or notify us of the reason for your failure to comply." Second Amended Complaint, P22. Upon receipt of the notice, plaintiff contacted Support Investigator Julian D'Alessandro and informed him that the reason for his failure to comply was that he was unemployed and that his sole source of income was his unemployment benefits. D'Alessandro was advised by plaintiff that he hoped to return to work in April. Although denied by plaintiff, see Second Amended Complaint, P23, D'Allessandro states in an affidavit that he instructed plaintiff to apply to the family court for a modification of the support order. Affidavit of Julian D'Allessandro, P9.

 On March 16, 1982, without any further notice to plaintiff, SCU again sent a determination of missed payments to UIO and again directed that it withhold seventy-five dollars a week from plaintiff's unemployment benefits and that it pay that sum to SCU. From April 11, 1982 until May 31, 1982, UIO withheld the entire ninety-four dollars of plaintiff's weekly unemployment benefits. Apparently, seventy-five dollars was withheld pursuant to the court order and the additional nineteen dollars was withheld because of two payments that it had failed to withhold prior to April 11th.

 On May 11, 1982, plaintiff petitionedthe family court for modification of the support order. Pursuant to a stipulation entered into with SCU on July 20, 1982, the unemployment compensation intercepts were dicontinued pending conclusion of the proceedings. On February 1, 1983, after several adjournments, the family court ordered that the underlying support order be terminated. Plaintiff now claims that as a result of the withholding of his unemployment compensation benefits, he and his household were without funds for food, rent and other necessities from April 11, 1982 until June 11, 1982, when he received his first paycheck after returning to work. *fn5"

 Four distinct claims are raised by plaintiff's complaint. First, plaintiff argues that insofar as § 49-b authorizes and permits the concurrent issuance of income deduction orders with the making of support orders when the support is payable directly to SCU instead of the person legally entitled to the support, and requires the implementation of the income deduction order without regard either to whether there is good cause for the failure to make the required payments or to a respondent's ability to pay the ordered support after he fails to make a specified number of support payments, that section operated to deprive plaintiff of the equal protection of the laws, since persons whose dependents are not receiving public assistance are not similarly subject to an automatic income deduction.

 Second, plaintiff claims that the simultaneous issuance of an income deduction order with the support order violates his due process rights inasmuch as he is deprived of notice and an opportunity to be heard with respect to whether there is good cause to ...


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