dissenting. I agree that the broad definition of “income” found at Administrative Order No. 10 by our supreme court authorizes extending the child-support obligation to SSI benefits. I also agree that federal law does not expressly prohibit child-support payments from being assessed against SSI benefits. However, I dissent for three reasons. First, the chancellor’s order directing appellant to pay child support from her SSI benefits, affirmed by today’s decision, damages clear and substantial federal interests and directly contravenes the congressional intent that underlies the SSI program. Second, the majority fails to discern the different treatment that federal law accords benefits intended to serve as income replacement, from those benefits intended to secure a guaranteed subsistence income. Finally, the majority, opinion affirms a chancellor’s order that sets child support without proof about the children’s needs, and unfairly attempts to shift the burden regarding proof of the children’s needs.
Rather than turning solely on the issue of whether SSI benefits are “income” from which child support may be assessed, this appeal involves the broader issue of whether requiring an SSI recipient to pay child support from her benefits does major damage to clear and substantial federal interests and directly contravenes the intent of Congress in enacting the Supplemental Security Income Program. See Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979). Unlike the majority, I conclude that assessing child support against SSI benefits both directly contravenes the congressional intent that underlies the SSI program and does major damage to the substantial federal interest in providing a national guaranteed minimum income level to poor persons who are blind, elderly, or disabled. Therefore, I would reverse the chancellor’s order.
The majority states that the resolution of the issue in this case is determined by “whether Congress has ‘positively required by direct enactment’ that Arkansas law, which included SSI benefits within its definition of ‘income’ for purposes of setting child support, be pre-empted . . . .” (citing Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979)). The majority concludes that because the federal statutes governing SSI are “ambiguous” with regard to whether SSI benefits are immune from garnishment and other legal process applicable for collecting child support, and because the Supreme Court has traditionally given deference to the states in matters of family law, “it cannot be said that Congress has acted in such a positive and direct manner as to preempt state action.”
However, this approach ignores that the Congress may, absent a positive direct enactment, implicitly intend to supercede state law in a given area. See Wisconsin Public Intervenor v. Morther, 502 U.S. 597 (1991). Congress may implicitly intend to supercede state law where the goals to be obtained by a federal program and the obligations imposed reveal a purpose to preclude state authority. Id. at 605 (citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947)). Congress may also implicitly intend to preempt state law when that law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Wisconsin Public Intervenor v. Morther, supra, at 605 (quoting Hines v. Davidowitz, 312 U.S. 52 (1941)).
Thus, merely determining that Congress hás not positively required by direct enactment that state law be preempted is not dispositive. The next step is to examine the congressional intent that underlies the SSI program, and determine whether the state law directly and adversely interferes with the objective of the federal program. The final step is to determine whether the state law does major damage to clear and substantial federal interests.
As the Supreme Court observed in Schweiker v. Wilson, 450 U.S. 221 (1981), SSI benefits were intended by Congress to help impoverished blind, aged, or disabled persons attain a guaranteed minimum income level. SSI benefits are immune from garnishment, levy, execution, or other legal process. See 42 U.S.C. §§ 407(a) and 1383(d)(1). Moreover, SSI benefits are not subject to federal taxation. 26 U.S.C. § 86(d)(1). Congress plainly intended that SSI beneficiaries be accorded special treatment. While no federal statute expressly dictates that SSI benefits are beyond the reach of an order to pay child support, it is self-evident that the diminution of those benefits by deducting child-support payments will directly and adversely impact the federal objective in providing a guaranteed minimum income for poor persons who are aged, blind, or disabled.
The majority states that Arkansas law does not do major damage to the federal interest in providing a guaranteed minimum income because Arkansas’s child-support guidelines grant chancellors some discretion in assessing support. The majority is mistaken when it bottoms today’s decision on the exercise of a chancellor’s discretion. The fact that chancellors have discretion to deviate from the child-support guidelines does not resolve the threshold question of whether imposing those child-support guidelines undermine federal objectives in enacting the SSI benefit scheme. After all, if the federally guaranteed floor is uprooted by the exercise of that discretion then the federal interest in laying the floor has sustained major damage.
The decision by the Tennessee Supreme Court in Tennessee Department of Human Services, ex rel. Young v. Young, 802 S.W.2d 594 (Tenn. 1990), is a sound approach to the problem presented by this appeal, i.e., whether SSI benefits should be subject to child-support orders, because it recognizes that benefits that are in the nature of replacement for earning loss (such as disability benefits and pension benefits) are materially different from welfare benefits aimed at providing recipients with subsistence income. Social Security Disability recipients, Veteran’s Administration disability recipients, workers’ compensation disability recipients, and recipients of unemployment compensation benefits receive benefits based on their income levels before disability or unemployment. Those benefits are properly deemed income for purposes of the child-support obligation. But as the Tennessee Supreme Court observed in Young:
SSI payments are a form of public assistance and have nothing to do with earnings a person may have had. It is essentially a safety net program, to protect indigent persons who are otherwise qualified for the program. [T]he amount of money to which an SSI recipient is entitled is contingent upon how little a person makes or has made rather than how much. An eligible SSI recipient’s benefits are the amount necessary to raise the recipient’s income to the prescribed minimum level. By contrast, the amount of a Social Security Disability recipient’s benefits is keyed to how much that person has paid into the Social Security system over time.
Id. at 597 (emphasis added).
The majority patently fails to recognize this vital distinction. Thus, the result affirmed today treats the subsistence stipend that the federal government provides aged, blind, or disabled poor people the same way that Social Security disability benefits, Veteran’s Administration disability benefits, workers’ compensation disability benefits, and unemployment compensation benefits are treated as far as child-support orders are concerned. But Supplemental Security Income benefits are not and have never been income replacement benefits. People receive SSI because the federal government intends to provide a national floor below which no aged, blind, or disabled poor person will fall, not because they were disabled in the course of their employment (Veteran’s Administration and workers’ compensation disability), or because they are disabled from gainful employment done in the past (Social Security disability), or because they are unemployed after having worked in the past (unemployment compensation benefits).
The majority is simply mistaken in asserting that “[ajlthough SSI is protected by [42 U.S.C. §] 407 against garnishment, levy, and other legal process, Congress created a limited waiver of this sovereign immunity in 42 U.S.C. § 659(a) which makes government benefits which are based upon remuneration for employment subject to child-support enforcement measures, regardless of the protections of section 407.” If SSI benefits are not based upon remuneration for employment — a reality that the majority neither denies nor challenges — it is simply wrong to assert that a statute applicable to benefits based upon remuneration for employment authorizes the result affirmed today.1
The Tennessee Supreme Court also correctly reasoned that it would violate the explicit intention of Congress in enacting the Supplemental Security Income Program to require an SSI recipient to pay child support from subsistence benefits.
Because of the nature of the program’s mission, SSI recipients have a very low income level and little, if any, opportunity to raise that level because of their age or disability. Subtracting child support payments, in the variable amounts set by state trial judges, from this already low figure would reduce theindividual recipient’s income below the guaranteed minimum level for aged, blind, and disabled persons.
Id., 802 S.W.2d at 597-98. If every chancellor in Arkansas can order child support paid from SSI benefits, the federally “guaranteed minimum” would be neither guaranteed nor a minimum subsistence benefit for aged, disabled, and blind poor people. Moreover, if each state can order child support paid from SSI benefits, the notion of a federally guaranteed minimum subsistence for the indigent, aged, blind, and disabled is made a joke by judges who merely pay lip-service to federal preemption. There is no hope for uniformity in the amount of SSI benefits. What a recipient may actually use to subsist varies depending on the judicial discretion of family court judges throughout the nation.
While I dissent in large part because I believe today’s holding conflicts with federal law, I also dissent because of the impact today’s decision will have on our state law. The record before us suffers from the absence of information about the financial situation of the two children who would benefit from the child-support payments ordered by the chancellor. We aré provided no information about their financial needs, the financial means of the custodial parent, or whether the children face any special situation that impacts on the child-support issue. In other words, we do not know how $70 a month will affect the ability of the custodial parent to provide for the children. I question the propriety of setting a precedent for affirming the chancellor’s award of child support absent information about the needs of the children to be supported.
The abstracted record includes the Petition to Set Child Support that the Office of Child Support Enforcement (OCSE) filed in the chancery court. The petition asserted that Randy I. Davis, father and physical custodian of the minor children (James R. Davis, born October 27, 1983, and Jake A. Davis, born February 2, 1986), had assigned all rights to child support to and “has signed Contract and Assignment for Child Support Services or has assigned all rights to collect child support....” The Petition recited that the chancellor had entered a decree of divorce on April 10, 1989, awarding custody to Randy Davis “but did not direct defendant to pay child support.” The Petition asserted no facts about the financial situation facing the children, their financial needs, or the ability of the custodial parent to meet those needs. The record is otherwise silent on those crucial factors related to determining child support. The Order of Support entered by the chancellor contains no findings of fact related to these issues. As far as appellate review is concerned, we do not know any of the facts that are essential to determining what child support is needed by these children, let alone whether that support has already been provided by the custodial parent or is being provided by a third party. Thus, we cannot fairly or honestly affirm the chancellor’s decision as an appropriate exercise of his discretion. This is particularly important because of the impact of that decision on this impoverished, mentally disabled, and essentially homebound appellant.
Further, the majority opinion attempts to unfairly shift the burden regarding presentation of proof of the children’s needs. While the majority accurately cites the holding that an appellant is responsible for bringing up a record sufficient to demonstrate error, see Clowney v. Gill, 326 Ark. 253, 929 S.W.2d 720 (1996), the appellee had the burden of proving the need for the child support that the chancellor ordered paid. After all, the appellee was standing in the shoes of the custodial parent in its claim for child support. Arkansas Code Annotated § 9-14-210(d) (Repl. 1998) states:
The State of Arkansas is the real party in interest for purposes of establishing paternity and securing repayment of benefits paid and assigned past due support, future support, and costs in actions brought to establish, modify, or enforce an order of support in any of the following circumstances: ... (2) Whenever a contract and assignment for child support services have been entered into for the establishment or enforcement of a child support obligation for which an automatic assignment under § 9-14-109 is not in effect.
It is beyond argument that the chancellor could not be affirmed in awarding child support on a petition by Randy Davis without some evidence about the financial needs of the children and the support that Randy Davis or others provided. It is equally plain that had Randy Davis asserted a claim for child support against appellant, he would have been obligated to produce evidence concerning the support needed for the children. The burden of producing that evidence would not have shifted to appellant, either before the chancellor or on appeal, had Randy Davis failed to produce any evidence. Therefore, I do not understand why the missing proof from this record should be blamed on appellant, the noncustodial parent from whom support was being claimed, rather than OCSE, the party responsible for bringing the support petition. How does the OCSE stand in a different position from the custodial parent?
The majority opinion asserts that appellant “does not question the factual findings of the trial court. The only issue on appeal is whether or not SSI is ‘income’ for purposes of paying child support. Therefore, we limit our discussion to this question of law and do not question the findings of fact below.” It is true that the appeal challenges the chancellor’s order that appellant pay child support of $70 monthly from her SSI benefits. It is equally true that the chancellor made no factual findings related to the support needs of the children. Given that the record contains no proof about their support needs, I understand why no such factual findings were made. That does not explain how or why the'majority believes appellant was responsible for producing the proof needed for such findings in order to challenge the chancellor’s order. It also does not explain how the majority determined that it is equitable, on de novo review, to require this appellant to pay almost one-seventh of her monthly subsistence as child support when no one has proved a thing about the needs of the children to be supported.
The record plainly shows that appellant has a monthly income of $494 from SSI benefits. Appellant suffers from paranoid schizophrenia, is homebound, and pays $400 each month to her sister toward her rent, groceries, and other living expenses. It is undisputed that the rest of appellant’s monthly SSI allowance is spent on medication for her schizophrenia, and that appellant smokes a pack of cigarettes a day. I do not understand how any of this evidence, or all of it for that matter, proves anything about the financial needs of the minor children. Appellant proved her entitlement to SSI benefits; she was not obligated to prove how much support the children needed.
Moreover, it is unwise and unfair to pose the problem presented in this appeal in terms of whether SSI beneficiaries have a moral obligation to support their children. I agree that poor parents are not exempt from the obligation to feed, clothe, and otherwise provide the support their children require. Every parent has a moral obligation to support her children. If this appellant had custody of her children she would no doubt qualify for additional government assistance for their needs. If the custodial parent is impoverished then he would qualify for that additional assistance. But appellant, the non-custodial mentally disabled and undisputably impoverished parent, is living on a federal subsistence stipend aimed at guaranteeing her a minimum living allowance. The question is whether money that the federal government has explicitly dedicated to guarantee a subsistence floor for her situation (aged, blind, or disabled poor people) can be diverted for child-support purposes without uprooting the floor. By disregarding the congressional intent to provide the destitute and mentally disabled federal subsistence benefits, and by ordering the appellant and others similarly situated to pay child support from those subsistence benefits, the court effectively destroys the federal effort to provide the appellant with a guaranteed minimum income.
Finally, it is a shame that the Office of Child Support Enforcement chose to treat this mentally disabled mother who subsists on less than $500 a month like a “deadbeat dad.” The decision to do so, coupled with the chancellor’s order and the result announced today, prove that Horace Walpole, the fourth Earl of Orford, was right more than two hundred years ago when he said, “This world is a comedy to those that think, a tragedy to those that feel.”2 The result affirmed today is anything but comical. I respectfully dissent from the tragedy that it will produce for this appellant.
42 U.S.C. § 659(a) states:
Consent to support enforcement. Notwithstanding any other provision of law (including section 207 of this Act [42 USCS § 407] and section 5301 of title 38. United States Code), effective January 1, 1975, moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States or the District of Columbia (including any agency, subdivision, or instrumentality thereof) to any individual, including members of the Armed Forces of the United States, shall be subject, in like manner and to the same extent as if the United States of the District of Columbia were a private person, to withholding in accordance with State law enacted pursuant to subsections (a)(1) and (b) of section 466 [42 USCS § 666(a)(1), (b) and regulations of the Secretary under such subsections, and to any other legal process brought, by a State agency administering a program under a State plan approved under this part [42 USCS §§ 651 et seq.] or by an individual obligee, to enforce the legal obligation of the individual to provide child support or alimony.
Letter to Anne, Countess of Upper Ossory, August 16, 1776.