Judges Opinions, — October 24, 2018 10:00 — 0 Comments

Snyder vs. Overdier No. 1997-5-0206 and Cruz vs. Overdier No. 2005-5-0502

Civil Action-Family Law-Child Support-Enforcement-Arrearages-Seizure of Assets-Accounts in Financial Institutions-Objection-Authority of the Court-Exigent Circumstances-Employer Error-Wage Attachment

The Lebanon County Domestic Relations Office froze assets in a checking account owned by Brandyn M. Overdier (“Father”), who largely had complied with his child support obligation owed to Jennifer Sue Snyder (“Mother”) and had not significantly complied with his support Order owed to another plaintiff, to remedy child support arrearages owed by Father to mother and another support plaintiff. Father filed an objection to the seizure of the assets in his checking account.

1. Title 23 Pa.C.S. § 4305(b)(10)(iii) provides that subject to the supervision and direction of the Court, the Domestic Relations Section shall have the power to expedite the enforcement of support to issue orders in cases where there is a support arrearage to secure assets to satisfy the current obligation and arrearage by attaching and seizing assets of the obligor held in financial institutions.
2. The grounds for objection to the attachment of assets of a support obligor are limited to the following: no overdue support exists under the support order or there is a mistake in the certified amount of overdue support; there is a mistake in the identity of the obligor; or the account is not subject to attachment as a matter of law.
3. The trial court possesses oversight authority and discretion with respect to asset seizures, which serves as a check upon the unfettered discretion of a domestic relations office to seize assets when support arrearages exist.
4. Because there are factual situations in which asset seizure could work an injustice, courts retain the discretion to respond appropriately to reject or to limit a seizure when equity so requires.
5. Clerical error with regard to the wage attachment by a defendant’s employer does not excuse a defendant from the obligation to pay support and does not rise to the type of exigent circumstance that would defeat seizure of assets.
6. In light of the fact that Father is in significant default of his support obligation owed to another support plaintiff, seizure of the entire amount in Father’s checking account is appropriate even though Father substantially has complied with his support obligation in the within case.
7. The assets in the account must be allocated in an equitable manner between the arrearages owing on the Order in this case and the Order payable to the other plaintiff.
L.C.C.C.P. No. 1997-50206, Opinion by Bradford H. Charles, Judge, January 11, 2018.
No appearances identified.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA
DOMESTIC RELATIONS SECTION

JENNIFER SUE SNYDER, Plaintiff NO. 1997-5-0206; PACSES NO. 82000092
ANNALUISA M. CRUZ, Plaintiff NO. 2005-5-0502; PACSES NO. 173107444
v.
BRANDYN M. OVERDIER, Defendant (Pro Se)

ORDER
AND NOW, to wit, this 11th day of January, 2018, the objection of Brandyn M. Overdier to the seizure of monies inside his checking account is denied. The seizure of said funds by the Lebanon County Domestic Relations Office is approved. The Lebanon County Domestic Relations Office shall allocate all of the seized funds in an equitable manner between Docket 1997-5-0206 and Docket 2005-5-0502.

BY THE COURT:

BRADFORD H. CHARLES, J.

Opinion, Charles, J., January 11, 2018
This case implicates the question of whether or when a Court should intervene when a Domestic Relations Office (DRO) seizes assets of an Obligor to satisfy child support arrearages. Although it is clear that the law favors asset seizure as a means to cure child support default, this general rule is not without exceptions. We can perceive a number of exigent circumstances when asset seizure would be antithetical to the purpose and spirit of the child support process. Because of this, and because the asset seizure statute declares that seizure is “subject to the supervision and direction of the Court,” it is obvious that a DRO does not have unlimited power to seize assets, and that courts can – and in some cases should – limit seizures when justice so requires. We author this opinion to address the question of whether we should limit the seizure of the DEFENDANT’s bank account as he requests.
I. RECENT BACKGROUND AND PROCEDURAL HISTORY
Brandyn M. Overdier (hereafter “DEFENDANT”) pays child support to two women (hereafter “PLAINTIFFS”), Jennifer S. Snyder (hereafter “SNYDER”) and Annaluisa M. Cruz (hereafter “CRUZ”). DEFENDANT has made full, regular payments in the SNYDER case, but he has missed payments to Ms. CRUZ. 1 On the SNYDER matter, DEFENDANT made full, regular monthly payments of $104.28 (one hundred four dollars and twenty eight cents). (Exhibit 1). However, he has paid only $5 per month toward the CRUZ obligation, and this is far from sufficient. (See Exhibit 2).
On November 3rd, 2017, the Domestic Relations Office (hereafter, “DRO”) froze assets in a checking account belonging to the DEFENDANT in an effort to remedy arrearages owed by DEFENDANT to both PLAINTIFFS amounting to $5,892.29 (five thousand, eight hundred, ninety-two dollars and twenty-nine cents) on the CRUZ matter and to $1,009.26 (one thousand nine dollars and twenty-six cents) on the SNYDER matter. According to the DRO records, there was $800 in the DEFENDANT’s checking account. This amount was frozen on November 6, 2017, and notice of the freeze was given to DEFENDANT. On December 5th, 2017, DEFENDANT filed a timely objection to the freeze. On December 12th, a hearing was held on this matter. Because we have never before analyzed asset seizure in a child support context, we will take the opportunity to do so today via this Opinion.
II. DISCUSSION
Before us is a mixed issue of law and fact. Our first duty will be to evaluate our legal duties and options when a support obligor challenges a seizure of assets. Thereafter, we must discern from a factual standpoint whether the DEFENDANT is in default on his support obligation. Finally, we must also consider whether equitable exigent circumstances exist that could under the circumstances render seizure unfair to the parties or to the very child that the seizure was intended to benefit.
The Pennsylvania Domestic Relation Code contains a statute governing seizure of assets as a remedy to reduce support arrearages. That statute reads, in relevant part:
“(B) Subject to the supervision and direction of the Court but without the need for prior judicial order, the Domestic Relations Section shall have the power to expedite the establishment and enforcement of support to…
(10) Issue orders in cases where there is a support arrearage to secure assets to satisfy current support obligation and the arrearage by:…
(iii) Attaching and seizing assets of the obligor held in financial institutions. 23 Pa. C.S.A. §4305(b)(10)(iii)
The Pennsylvania Support Rules define the process by which a defendant can dispute a seizure. The rules provide, in relevant part:
(b) … The obligor and any joint owner of the account who has been notified by the financial institution may object to the attachment in writing or by personal appearance before the domestic relations section within 30 days after issuance of the notice. The grounds for an objection are limited to the following: (1) no overdue support exists under the support order or there is a mistake in the certified amount of overdue support; (2) there is a mistake in the identity of the obligor; or (3) the account is not subject to attachment as a matter of law.
(c) If no objection is made within 30 days after notice was issued, the court shall, upon proof that obligor was properly served with notice of the attachment, enter an order seizing the assets up to the amount of overdue support owed.”
From the above, we discern that Trial Courts possess oversight authority and discretion with respect to asset seizures. The governing statute specifically declares that seizure is “subject to the supervision and direction of the Court”. The Support Rules further provide for a process by which the owner of an asset can object to its seizure. Viewed together, it is obvious that judicial review can serve as a “check” on the unfettered discretion of a DRO to seize assets when support arrearages exist.
Our conclusion is supported by the case of Wells v. Stump, 588 A.2d 47 (Pa. Super. 1991). In Wells, the Pennsylvania Superior Court overturned a seizure that was levied against an obligor who had been making regular payments but who still owed arrearages. The Superior Court stated:
“The General Assembly also had as an objective economic fairness to the obligor…we do not think the Legislature intended that an obligor be required to pay a lump sum arrearage while making weekly payments toward arrears and complying with the Order of Support. Such an interpretation is inconsistent with the rationale behind the Trial Court’s Order requiring a payment on account of arrears, and could jeopardize the obligor’s ability to maintain the weekly support obligation. This could be devastating to both the obligor and the dependent children, creating a never-ending cycle of amassed arrearages. Such an interpretation is contrary to the general purpose and object of the statute.” Id at page 49.
Without question, asset seizure is an important tool in the battle – and it sometimes is a battle – to enforce Child Support Orders. However, as we contemplated the issue of seizure, we quickly realized that circumstances could arise where asset seizure could create injustice. 2 Because there are a number of factual permutations where asset seizure could work an injustice, courts can and must retain the discretion to respond appropriately to reject or limit a seizure when equity so requires.
Having reached the conclusion that courts retain discretion to consider exigent circumstances whenever an objection to asset seizure is lodged, we turn to the question of whether we should exercise our discretion by preventing or limiting DRO’s seizure of the DEFENDANT’s bank account. As we undertake this analysis, it is necessary for us to separately consider the situations involving CRUZ and SNYDER.
With respect to SNYDER, the DEFENDANT has been fully compliant with his support obligation. He has paid the principle amount owed each month and he has paid Court Ordered arrearage amounts on a monthly basis as directed. As it relates to SNYDER, the DEFENDANT is not in default.
On the other hand, the DEFENDANT has not faithfully paid his obligation in the CRUZ case. The DEFENDANT does not dispute that he has missed payments owed to Ms. Cruz. However, he argues that his failure to pay resulted from a clerical error and not from any lack of intent on his part. Our review of the file reveals that a clerical was in fact made with respect to the DEFENDANT’s wage attachment. In fact, the DEFENDANT was wage attached only one-fifth of the required amount. Still, the pertinent Support Order reflected an obligation of the DEFENDANT – not his employer – and no clerical error regarding wage attachment can or should excuse a defendant from his obligation to pay support. In the end, it is the DEFENDANT’s responsibility to pay support and he failed to do so. We do not find that the DEFENDANT’s reliance upon a clerical error rises to the type of exigent circumstance that would defeat a seizure of assets.
Having concluded that we have the authority to conduct judicial review of an asset seizure, and having concluded that the DEFENDANT is in default with respect to one of his two child support obligations, we must now turn to the question of whether the DRO properly seized his $800.00 checking account.
We address this issue with recognition that it would not be practical to sever our decisions as it relates to the SNYDER and CRUZ cases. If we authorize seizure of the DEFENDANT’s $800.00 checking account, the entire amount will be seized because the DEFENDANT owes more than $800.00 in arrears on both the SNYDER and CRUZ cases. Therefore, if we were to declare that seizure is appropriate on only one of the two pending cases, the effect upon DEFENDANT would be the same – the DRO would take the DEFENDANT’s $800.00. Moreover, we fear that if we ordered seizure in only one case, then the entire $800.00 would be allocated to that case. This would have the effect of prioritizing one of the DEFENDANT’s two support obligations over the other, and this is a result with which we are not comfortable. Essentially, the decision we must make today is “all or nothing”. Either the entire $800.00 is seized and it is divided equitably between Ms. CRUZ and Ms. SNYDER, or the entire $800.00 should remain with the DEFENDANT.
Had the DEFENDANT complied with his Support Order in CRUZ as he did in the SNYDER case, we would have permitted the DEFENDANT to retain his entire $800.00 account. In fact, had the DEFENDANT missed only a small percentage of what he owed in CRUZ, we would have looked at the DEFENDANT’s overall compliance with his support obligations and we likely would have permitted him to retain the money in his checking account. As it is, the DEFENDANT is significantly in default with respect to his CRUZ obligation; we cannot declare his payment history to be close to substantial compliance.
In light of the DEFENDANT’s significant default in CRUZ, we will elect “all” instead of “nothing” as it relates to the seizure of his bank account. By an Order entered simultaneous with this Opinion, we will approve the seizure of the DEFENDANT’s $800.00 by DRO and we will direct the DRO to allocate the entire $800.00 amount in an equitable manner between the SNYDER and CRUZ obligations.

1 On the SNYDER matter, DEFENDANT made full, regular monthly payments of $104.28 (one hundred four dollars and twenty eight cents). (Exhibit 1). Due to a clerical error, DEFENDANT was only charged $10 (ten dollars) in monthly payments to CRUZ, rather than the intended $50 (fifty dollars). (Exhibit 2). DEFENDANT only paid $5 per month on that support obligation. (Exhibit 2). On the CRUZ matter, DEFENDANT has regularly missed payments.

2 Suppose, for example, an obligor has an arrearage balance solely because he underestimated the amount of his obligation between the date the complaint was filed and date the Order was finalized. Suppose, hypothetically, that a DRO desired to seize a bank account that was set aside for an older sibling’s college education or was required to be maintained as collateral for a loan that had previously been incurred for the benefit of the parties’ child. Under such circumstances, asset seizure could be profoundly unfair to children that the child support process is intended to benefit.

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