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Department of Public Aid v. Rivera

Case Date: 08/31/2001
Court: 2nd District Appellate
Docket No: 2-00-0315 Rel

August 31, 2001

No. 2--00--0315

_______________________________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

_______________________________________________________________________________________________

THE DEPARTMENT OF PUBLIC AID                                            ) Appeal from the CircuitCourt
ex rel. FELICITA LOZADA,                                                              ) of Du Page County.
                                                                                                           )
                                                                                                      )
Petitioner-Appellant,                                                  )  No. 93--F--1412   
                                                                                                           )
v.                                                                                                      )
                                                                                                      )
EDWARD RIVERA,                                                   ) Honorable
                                                  ) Thomas C. Dudgeon,
Respondent-Appellee.                                                  ) Judge, Presiding.

_______________________________________________________________________________________________

JUSTICE BOWMAN delivered the opinion of the court:

Petitioner, Felicita Lozada, appeals a judgment ordering herto pay $94 monthly child support to respondent, Edward Rivera.Petitioner argues that (1) the trial court could not order her topay any child support because she depends entirely on federalSupplemental Security Income (SSI), which federal law exempts fromchild support obligations; and (2) the award is excessive. Becausewe agree with petitioner's first claim of error, we vacate thejudgment without deciding petitioner's second claim. We hold thatfederal law forbids subjecting SSI benefits to child supportorders. As SSI is petitioner's sole source of income, the order inthis case must be vacated outright.

The parties have never married each other. Their son was bornin 1991. In 1994, an agreed order declared respondent the minor'sfather and ordered him to pay child support. In 1997, the minormoved in with respondent. On April 13, 1999, the circuit courtterminated child support retroactive to December 21, 1997.

Petitioner petitioned for custody or, alternatively,visitation. On June 21, 1999, an agreed order gave respondentcustody of the minor and allowed petitioner visitation. Respondentpetitioned for child support. On December 1, 1999, the trial courtentered a written order stating that petitioner currently received$500 a month in "SSD," none of which was going to support theminor. The order set temporary child support at $100 monthly andscheduled a hearing on permanent child support.

On December 29, 1999, petitioner moved to vacate the order ofDecember 1, 1999. Her motion alleged the following. Although theDecember 1, 1999, order required petitioner to pay child supportout of "SSD," she does not receive social security disabilitybenefits (SSD) but SSI. The difference is crucial because SSD isfinanced from payroll deductions but SSI is financed out of generalrevenues in order to provide disabled indigents with minimallyadequate incomes. SSI does not raise petitioner's income over thepoverty line, and she cannot afford child support. Moreover,petitioner's SSI payments are immune under section 407 of theSocial Security Act (42 U.S.C.A.