Request By:
Ms. Linda P. Sullivan
Corporate Counsel, Lexington
Fayette Urban-County Government
Department of Law
200 East Main Street
Lexington, Kentucky 40507
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Richard C. Carroll, Assistant Attorney General
In a recent letter to this office you requested an opinion on whether pension benefits of urban county government police officers and firefighters were exempt from attachment or assignment for purposes of enforcing child support orders. Apparently, your office has received assignment orders from the Fayette Circuit Court to attach these pension benefits to satisfy child support arrearages.
In deciding this issue, there are two state statutes which must be reviewed. First, KRS 67A.620, which is concerned with pension benefits of urban county government police and firefighters, provides:
The right to a retirement annuity, disability annuity, survivor's annuity or benefit, death benefit, or any other benefit under the provision hereof, by whatever name called, or refund, is personal with the recipient thereof, and the assignment, garnishment, execution, or transfer of such benefit or any part thereof shall be void, except as herein provided. Any such annuity, benefit, or refund shall not answer for debts contracted by the person receiving the same, and it is the intention of this section that they shall not be attached or affected by any judicial proceeding.
(Emphasis added.)
Second, KRS 427.120 states:
No part of any police or fire fighter's pension fund established in a city of the first, second or third class shall, before or after its order for distribution to any person entitled thereto, be seized or levied upon by any writ or decree for the payment of any debt, claim or judgment against the beneficiary of the fund.
(Emphasis added.)
Reading these two provisions together one could argue that such benefits should not be subject to garnishment or attachment for purposes of enforcing a child support order. However, to render such an opinion would ignore the history in the Commonwealth regarding the enforcement of child support orders. While it cannot be cited for authority on this issue, the unpublished decision of the Court of Appeals in West v. West, Ky.App., 86-CA-000402, (01-09-87), a copy of which is attached, contains the general principles followed in Kentucky regarding enforcement of child support orders.
In West, the Court of Appeals was faced with the question of whether KRS 342.180, which exempts workers' compensation benefits from all claims of creditors, is applicable to the assignment of benefits for court ordered child support. The court, in arriving at its decision, relied upon two basic principles. First, the court cited
Boden v. McCoy, Ky., 278 S.W.2d 68 (1955), and 24 Am.Jur.2d Divorce and Separation, Section 764 (1983), for the proposition that statutes exempting property from legal process in the enforcement of a claim against the debtor are not applicable to a claim for alimony or child support. According to the court, child support is not to be considered as a debt founded upon a contract, but instead an obligation in which the public is interested to require a father or mother to care for his or her children. This view of the court in West is consistent with an earlier published opinion by the Court of Appeals styled
Goodman v. Goodman, Ky.App., 695 S.W.2d 865 (1985). In Goodman, the Court of Appeals was faced with the issue of whether an ex-spouse may be repeatedly incarcerated pursuant to the trial court's contempt power for his failure to honor the terms of an agreed order regarding delinquent child support payments for a child who has reached the age of majority. In addressing this question, the court cited language from Professor Dobbs' book on the Law of Remedies, (1973), regarding the difficulty courts have had in determining whether obligations such as child support should be classified as debts. The paragraph in Professor Dobbs' book, which precedes the one cited by the court in Goodman provides that:
A contract obligation is a debt, but it is possible to conceive of an obligation to pay alimony or child support as a duty to pay that arises out of statute, not debt.
Id., at 99.
The court in Goodman went on to hold that:
After due consideration, we conclude that Leslie's obligation under the agreed order of November 3, 1982, is one imposed by law, and thus is something other than a simple contractual debt.
Goodman, 695 S.W.2d at 867.
The principle that child support is not to be considered as a debt based upon a contract is in accord with the majority rule in this country on this issue. See 16 Am.Jur.2d Constitutional Law, Section 622; 23 Am.Jur.2d Desertion and NonSupport, Section 113; and Krane, Child Support in America, Chapter 11 (1981).
Therefore, in accordance with the above-cited authority, it is the opinion of this office that a child support obligation is not to be considered as an ordinary contract debt. Instead, it is to be viewed as a legal obligation imposed upon a parent by the state to support his children.
This interpretation follows along with the second major basis relied upon by the Court of Appeals in the West decision. In citing the policy provision of the Workers' Compensation Act, KRS 342.160, as well as various cases from Kentucky and other jurisdictions, the court noted that the purpose behind the compensation law was to provide a means of support for the worker and his dependents. Likewise, KRS 67A.380 provides that the purpose of the pension and retirement fund is to provide benefits to the members and their dependents. In fact, under KRS 67A.440, minor children of a member who dies are entitled to receive a portion of the member's benefits for a specified period of time. Clearly, the intent of the legislature was to provide assistance to the member, his spouse, and children in regard to his pension benefits.
It is also important to note that the Internal Revenue Code and the Employee Retirement Income Security Act of 1974, (ERISA), both of which govern pension plans, authorize the attachment of pension benefits for child support pursuant to a qualified domestic relations order. See 60A Am.Jur.2d Pensions and Retirement Benefits, Sections 456-467.
Therefore, based upon the principle that a child support obligation is not to be considered as an ordinary contractual debt, but a moral obligation imposed by the state, and that the policy of KRS 67A is to provide benefits for the fund's member as well as his or her dependents, it is the opinion of this office that such benefits may be subject to attachment, assignment, or garnishment for purposes of enforcing a child support order.