VeteranHOPE.org About VeteranHOPE Contact VeteranHOPE




Child Support & the Disabled



The Effect of Disability Discrimination
on the Support of Veteran Families in Washington





November 28, 2012

By

Robert Terrien




Copyright © 2012




Disability and Discrimination

Disability discrimination is not always intentional or obvious. It usually comes to light only when we realize our actions have caused someone distress or offense. As long as we do not see the connection between disability and discrimination, we cannot effectively solve this problem.

The legal recognition of medical disability is intended by Congress, and by the Washington Legislature, to protect all of us from discrimination, not just the disabled. We must bring the invisible problems of this discrimination to light so they can be resolved.


Take a moment to consider the following points;

  1. The more seriously disabled an individual is, the more likely he (or she) will experience discrimination.

  2. The harder it is to see disability, the harder it is to see the discrimination related to it.

  3. The longer it takes to establish veteran disability, the harder it is to get help resolving the discrimination.

  4. Veterans are one of the largest groups of disabled people in Washington.



Thank you.

Please continue.






Child Support and Veteran Disability

Disabled veterans experience considerable discrimination throughout life. This includes discrimination in the courtroom and through prolonged negative contact with the Washington Department of Social and Health Services (DSHS) Division of Child Support (DCS).

The courts are not sufficiently aware of the problem because disabled veterans are unable, or unwilling, to return to court. There is a widespread belief that it will do more harm than good. Once stripped of resources and income, the disabled veteran must go back to court alone, pro se, and vulnerable to the skills of professional attorneys. This often leads to useless confrontation and bickering which in turn causes unbearable stress and anxiety for all parties. It is viewed as a waste of time to explain how a disability, is a disability, and how imputed income would be discrimination.

DCS may also be unaware of the fact that, because many of these veterans are seriously disabled from military service prior to their support orders, ordinary support enforcement actions are actually a form of discrimination. Until now, nobody has been able to provide the necessary insight to help these families, the courts or DCS.

Initial veteran disability decisions can take up to 2 years and appeals take considerably longer. Meanwhile, seriously disabled veterans may receive Social Security benefits. By the time anyone in the court or DCS becomes aware of the disability, discrimination has already taken its toll.

This is a very serious problem that is undermining the foundations of our state and the fabric of our nation. We must understand where the discrimination begins in order to end it. The earlier we can identify cases involving disabled veterans, the easier it will be to prevent discrimination while ensuring family support. The courts need to be better informed of disability and how it has contributed to bringing these veteran families to dissolution.

Not every case involves disability, so it is important to proceed with care and attention to the possibility. We should be connecting these veteran families with federal benefits rather than allowing them to fall into long-term dependency upon the state.

Many of these concerns have been raised in the past, but not in the way presented here. The idea is to introduce this problem and offer some insight with viable solutions. For current support cases, an appropriate solution will be presented below. Past cases are more complicated, but there must be some way to bring the matter for consideration of disability without expensive adversarial confrontation. There is.

Please keep in mind that this report is for informative purposes only. It is not intended to provide legal advice nor to replace the services of an attorney. The purpose of this report is to help disabled veterans and their families by providing useful information to their advocates, attorneys, the courts and DCS.

I am not an attorney, but I am a veteran living with disability and dealing with discrimination. This is what I have learned in the past 6 months by reading dozens of court cases involving discrimination in the establishment and enforcement of support orders against disabled veterans.

This is the most accurate information available, but is untested because many of the disabled veterans who have experienced this discrimination have already died homeless and abandoned.

We must understand that discrimination is the problem and we must raise the awareness of this problem in the courts, and among the public, to correct it. Hopefully, this information will shed some light on the issue to inspire further study and discussion that leads to preventing further discrimination.




Thank you.

Please continue.






To Find a Solution, Define the Problem

The problem really begins with some confusion over the meaning of the term “disability” and the application of law regarding the income and earning capacity of the disabled. In this report, “disability” has 2 related meanings. Understanding both will help us to see how the discrimination is related to disability and how it harms the entire family of the disabled.

One definition of disability is basically a medical condition that interferes with activities in life, such as work. It is found in US Code, Title 42 Chapter 126, the Americans with Disabilities Act (ADA), and in RCW 49.60, the Washington Law Against Discrimination (WLAD).

The other is a legal determination that a medical condition exists and that it does interfere with working for a living. This is usually the domain of the Social Security Administration (SSA), the Department of Veterans Affairs (VA), the Washington Department of Labor and Industries (L&I), and the Department of Social and Health Services (DSHS).

The ADA and WLAD are not limited to building codes and employment. Both laws are also concerned with government policies and practices that harm the disabled through exclusion, neglect and mistreatment. These laws relate to the 5th and 14th Amendments of the US Constitution and to the civil rights provisions in the Washington State Constitution. This report is not focused on the details of either law, but on the general application of law to people who already meet the criteria of both.

The Washington State Bar Association (WSBA) Access to Justice Board (ATJ) has published guides on disability access for the courts and for administrative proceedings. Both documents are listed in the Resources section at the end of this report and both are highly recommended.

The WLAD clearly demonstrates the solemn legislative intent to protect the entire state by protecting its people from discrimination of any kind.

“This chapter shall be known as the 'law against discrimination.' It is an exercise of the police power of the state for the protection of the public welfare, health, and peace of the people of this state, and in fulfillment of the provisions of the Constitution of this state concerning civil rights. The legislature hereby finds and declares that practices of discrimination against any of its inhabitants because of race, creed, color, ... honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability ... are a matter of state concern, that such discrimination threatens not only the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state.”
RCW 49.60.010

Recognizing discrimination comes from realizing that any person could be a member of any one or more of the protected groups named in the WLAD. Some are more obvious than others. The harder it is to see the discrimination, the harder it is to see the harm it does to everyone.




Ethical and Professional Responsibility

It should be obvious that a significantly disabled person will not have the resources to go back to court, especially with an income reduced to the poverty level or below. Any person with a serious medical disability may not be able to return to court for a very long time and may not be able to assert the right to protection under the ADA or the WLAD.

Therefore:

It is the the ethical and professional responsibility of DCS and the courts to recognize that such an individual is protected by law and take steps to prevent discrimination. These steps should include reconsideration and correction of unjust orders, periodic reviews, instructions and oversight.

Failure to take these preventative steps invariably harms the disabled parents of Washington by depriving them of equal protection under the law and by heaping the insult of discrimination upon the injury of disability.

Any determination of disability, by any qualified state or federal authority, reveals that the person with disability is protected by the ADA and the WLAD. This includes any finding of disability by L&I, DSHS, Social Security, the VA and prior disability decisions made by other courts.

Whenever DCS becomes aware of the disability, all enforcement actions must stop. The entire support order must be reviewed and recalculated, from the beginning, to correct any errors and to prevent any further discrimination.

This falls within the constitutional area of civil rights regarding due process and equal protection of the law. It must be addressed quickly, and properly, to correct what is already discrimination against the disabled person.

DCS training includes the prevention of discrimination, but VA claims take so long that discrimination often happens before it is recognized. When support orders involve veteran families, they should be flagged for periodic review and watched for disability determinations.

Ordinary support enforcement actions can have a devastating effect on people who are already struggling with the loss of income due to disability. Garnishment could leave more significantly disabled veterans well below poverty, which would be an enforcement violation of the “self-support reserve” currently described in RCW 16.19.065(2)(b) as “one hundred twenty five percent of the federal poverty level.”

As soon as it is possible, the disabled individual should tell the court that SSA and/or VA claims have been filed. Only the court can order the proper consideration of disability and correct any problems with enforcement.

It is also important to tell the court as soon as disability is determined. This should help ensure monitoring and periodic review of the case. At least, it will demonstrate a good faith effort to provide support, in spite of disabilities.

Help is available.

Any person with disabilities, veteran or not, can ask the court to provide a qualified attorney, at no cost, under General Rule 33 of the Washington Court Rules. GR-33(a)(1)(C) . If a disability is evident, the court has a responsibility to acknowledge the disability and act accordingly, even when no request is made.




Child and Family Support

The legislature has also declared that child and family support are serious concerns of the state. RCW 26.19 establishes the child support schedule as the statutory guidelines and limitations for determining child support. Surrounding statutes, apply to the establishment and enforcement of support orders;

“The legislature intends, … to insure that child support orders are adequate to meet a child's basic needs and to provide additional child support commensurate with the parents' income, resources, and standard of living. The legislature also intends that the child support obligation should be equitably apportioned between the parents.

The legislature finds that these goals will be best achieved by the adoption and use of a statewide child support schedule. Use of a statewide schedule will benefit children and their parents by:
(1) Increasing the adequacy of child support orders through the use of economic data as the basis for establishing the child support schedule;

(2) Increasing the equity of child support orders by providing for comparable orders in cases with similar circumstances; and

(3) Reducing the adversarial nature of the proceedings by increasing voluntary settlements as a result of the greater predictability achieved by a uniform statewide child support schedule.”

RCW 26.19.001

and family support, including spousal support for the disabled person;

"... any person who is able to provide support, or has the ability to earn the means to provide support, and who: ... Willfully omits to provide necessary food, clothing, shelter, or medical attendance to his or her spouse or his or her domestic partner, is guilty of the crime of family nonsupport."
RCW 26.20.035

and accounting protection for both parties;

"It is the intent of the legislature to create a central Washington state support registry to improve the recordkeeping of support obligations and payments, thereby providing protection for both parties ..."
RCW 26.23.010


Disability claims take time. The SSA and L&I can take several years, but the VA takes the longest. Where veterans are concerned, the more disabilities they have, the longer it takes to make the determination. Meanwhile, their families often struggle for basic necessities and many end up receiving public assistance.

While they are looking for work and waiting for VA decisions, the stress of personal confrontation over money in the home can drive disabled veterans out to live on the streets. Some seek treatment. Some just get lost. The result is that most disabled veterans lose their income, credit and credibility. They usually end up homeless or more dependent upon the state. They are constantly vulnerable to further abuse and discrimination.

Please note:
Veterans who become homeless are seldom reunited with their loved ones, even if they do receive disability benefits. It is possible that family counseling could help, when it is available.






Disability Insurance Benefits are NOT the same thing as Welfare

Income is essential to supporting a family, so we get jobs and go to work, drive cars, buy homes and build the American Dream. Just in case something bad happens, we have employment contracts and insurance policies that provide benefits in the event of injury or disability.

  • Auto insurance to protect ourselves from driving mistakes.

  • Homeowners insurance to protect our homes and guests.

  • L&I Industrial insurance to protect workers and employers.

  • Social Security Disability Insurance (SSDI) is premium-fee based insurance to protect working Americans from “total disability,” which is the loss of their ability to produce income through work, due to illness and/or injury.


    If an individual does not file for SSDI within 3 to 4 years after becoming disabled, the SSA will not provide insurance. Do Not Wait!

  • VA Service-Connected Disability Compensation is an employer sponsored “insurance” benefit to protect military service members from “disability” due to on-the-job injury, specific to military service. It is covered under federal funding because the cost of private insurance would be impossible to sustain.

Veterans are covered under VA Compensation by enlistment contract and under Social Security Disability Insurance based on the premiums paid out of their paychecks, just like every other working American.

Anyone who becomes disabled from on-the-job injuries, military or not, has a duty to file a claim for disability insurance benefits. It is an important part of doing everything possible to continue providing support for the family.
It is a matter of responsibility, not a matter of convenience.

Certain Disability Benefits Not Covered by Insurance

Both Social Security and the VA offer a last resort, needs based, poverty level, minimum income benefit for the totally disabled. These benefits are not insurance like those listed above, but they do include dependent benefits.

Supplemental Security Income (SSI) is federal support for people who are totally disabled, but do not qualify for SSDI because of a lack of premiums from work.

VA Non-Service-Connected (N-S/C) Disability Pension is available to wartime or combat veterans who are totally disabled from illness or injuries, but only part of the total disability is service related.






Disability and Support Orders

When the court is aware of disability, income is not imputed. The support calculation is based on actual income and is within the guidelines and limitations of RCW 26.19. In the context of this report, the term “disabled” means “unemployable” and according to RCW 26.19.071(6) "Income shall not be imputed for an unemployable parent."

The entire disability benefit income serves as a replacement for the working income lost to disability. See In re Marriage of Maples, 78 Wn. App. 696, 899 P.2d 1 (1995). The child support worksheets should include both the disability benefit and the dependent benefits, as income of the disabled parent, regardless of which parent receives the dependent benefits for the children.

Many disabled people attend schools and do limited work to improve their health and better themselves, but the SSA and/or VA determination of disability means that they are considered unemployable. Additional income cannot be imputed because the disabled person cannot be considered “voluntarily underemployed” either.

Other income from work may be used in the worksheets, and to pay support, but cannot be used as an excuse to contradict the disability by imputing income. That would be an act of discrimination by the abuse of discretion.

On the other hand, if the disabled parent's income is not significantly above the self-support reserve of 125% of poverty, the order should be limited to the presumptive minimum or the dependent benefits, whichever is greater.

Usually the “presumptive minimum” is what the court will order, but the disabled, non-custodial parent cannot use that as an excuse to keep the remaining dependent benefits. The entire dependent benefit must be divided equally between the dependents and transferred to the custodial parent(s) immediately.

A disabled parent may be held in contempt for depriving the dependents of benefits clearly intended for their support.

Common Errors:

Some courts have mistakenly ruled disabled veterans to be “voluntarily unemployed” based on a misconception that any VA rating less than 100% does not actually count as a disability. These courts added the imputed income to disability benefits in order to artificially inflate the support order. The court seems to believe that a disabled person should make up to twice as much money as he or she could without disability. This assumption is patently absurd and untenable ground.

The easiest thing to overlook is support for the disabled person. While support for the children comes first, it is important to remember that the disabled person may be entitled to spousal support as well. Veterans often leave the home to avoid conflict, and sometimes abusive criticism over financial matters, but it is usually the spouse that abandons the disabled veteran, not the other way around.






Support Orders Before Disability

When the court is not aware of an existing disability, the unemployment will usually be considered “voluntary” and the court will impute income to determine a support order. Even though it is an unsupported presumption, it is appropriate, given the limited information before the court.

Once the disability is revealed by qualified state or federal authorities, like L&I or DSHS, the SSA or VA, the ruling of “voluntary unemployment” is revealed to be incorrect. Imputing income to a disabled parent is clearly unjust. In most veteran cases, it is void. This will be fully explained below. Even if the existing disability is determined years after the support order, the effect is the same.

At this point, DCS should ask the courts to vacate orders that are void and to modify orders that are unjust so they conform to RCW 26.19, as required in RCW 26.09.100 due to the obvious “hardship” defined in RCW 26.09.170(6)(a). Since the disability cannot be disputed, this is a simple matter of removing the imputed income and reissuing the corrected order so enforcement actions do not lead to discrimination.

In the past, DCS has been conservative about bringing cases back for modification when the facts are unclear. As a result, the arrears account will reflect a high balance with little or no payment activity. Enforcement is based on the order as it is written, until it is modified or relieved. That is why the court must be notified of the disability as soon as possible.

The most common error is ruling that disability does not count until after a court ordered modification, even if the disability existed before the original order. This leaves a large arrears balance, between the date of the original order and the date of modification. The disabled individual is still subject to enforcement and collection of an insurmountable, unjust debt. Not even bankruptcy can relieve the disabled person of this discrimination. There is no justice in a worthless modification, so most disabled veterans do not waste the time trying.




Modification

When someone becomes disabled while a support order in effect, the loss of income could mean a delay in regular payments. The support order will be counted as growing arrears, or what is called “back child support” until it is corrected by the court.

Once a qualified state or federal authority finds that a parent has become disabled, the support order should be modified from the onset date of the disability, because that is the date of the substantial "change of circumstances" under RCW 26.09.170.

As soon as it is practical, the order must be reviewed because failure to address the modification in a timely manner could create an undue hardship for the disabled parent. Waiting for the disabled person to bring action, would be discrimination by professional negligence.

Regardless of where the support order was generated, here in the Washington or in another state, the orders that involve the disabled must be examined closely. If discrimination has already occurred, corrective action must be taken immediately.




A Simple Solution for Present Cases

Veterans with open VA claims should ask the court to include a small provision in the support order, something to the effect of; “If the veteran is later found to have been disabled at the time of this order, it shall be reviewed and recalculated to comply with RCW 26.19, from the date of this order.”

Discrimination would be prevented by providing specific instructions which demonstrate the court's awareness of potential disability and the intent to balance the dependent support with support for the disabled veteran.

Such an order allows relief for the disabled without costly adversarial proceedings in the future. This very simple suggestion fulfills the legislative intent "to insure that child support orders are adequate ... commensurate with the parents' income, resources, and standard of living" and to reduce the "adversarial nature” of proceedings. RCW 26.19.001.

The real difficulty remains in the older cases where substantial, long-term disability has preceded the support order, but the veteran has been unable to get help bringing this to the attention of the court for many years. The anticipation of long and expensive arguments is discouraging for anyone, but with no hope for relief, it is simply the total exclusion from justice.




Disability and Jurisdiction

In many domestic support cases, the veterans have already engaged in VA claims for disability service connection and some will have applied for Social Security benefits. Decisions by these federal agencies uncover the fact that the state Court lacks “subject matter jurisdiction,” thereby lacks the authority at law to rule disabled veteran's unemployment to be “voluntary.”

The disability determination reveals that the order of imputed income is invalid from the beginning (void ab initio). It does not "change" the order. It simply proves that the order has no effect and is not enforcible because it is based on an unsubstantiated presumption, rather than properly established fact and law.

Under 42 USC § 423(d) and Title 38 USC, the SSA and VA have expertise in the legal determination of "disability" which is defined as the loss of the employability, meaning the loss of capacity to work for a living, based upon a "medically determinable physical or mental impairment," which is a "disability" as defined under, the ADA and the WLAD.

The Social Security Administration holds jurisdiction on determining whether the medical condition of an individual has made the individual totally unemployable or not. SSA appeals belong to the federal court.

The VA holds exclusive jurisdiction in the determination of disability from on-the-job injuries while serving in the US military. VA appeals belong to the federal court.

The court cannot modify, contradict or ignore the legally established fact of medical disability because the determination reveals that the subject matter jurisdiction resides with the respective federal authorities. The state court has no authority to impute income to a disabled, therefore unemployable, parent.

“A judgment entered by a court that lacks jurisdiction is void and is subject to vacation whenever the lack of jurisdiction comes to light.” Mitchell v. Kitsap County, 59 Wn. App. 177. (1990).

The US Department of Veterans Affairs (VA) is to the US military what the Washington Department of Labor and Industries (L&I) is to working employees in the state of Washington. The jurisdiction is similarly exclusive.

L&I holds the exclusive jurisdiction on original determinations of disability from on-the-job injuries in Washington per RCW 51.04.010. Likewise, DSHS holds jurisdiction on disability related eligibility for state assistance. L&I and DSHS disability decisions belong to the superior court on appeal.

Domestic support proceedings are not disability appeals, so the court is held from contradicting the disability by imputing income.

Please note:
The legally established fact of a medical disability also establishes an important point which must carry forward in all subsequent proceedings; the disabled individual is officially recognized as a member of a disadvantaged class of people who are vulnerable to abuse and discrimination, so this individual is protected by the ADA and the WLAD. This applies to veterans as well.

Further inquiry into the nature, extent or details of the disability is prohibited by the ADA and the WLAD, because it can only lead to more harmful discrimination and because probative value is irrelevant without subject matter jurisdiction.

The only exception is a minimal description of disability in a request for Reasonable Accommodation under Washington Court Rule (GR) 33, which is then sealed for privacy under GR-33(b)(3) “SEALED MEDICAL AND HEALTH INFORMATION.”

Details of medical conditions or disabilities should not be made public in the findings and orders, because this could lead to other forms of discrimination and abuse. Any such medical details should also be kept in sealed records.

The Fact of Disability is Protected, Regardless of the Degree

Both SSA and VA decisions have the same affect as federal court rulings of disability. They are both sufficiently adversarial to prove the fact of medical disability and to establish a date of onset. The agency must gather the evidence and argue both sides to the satisfaction of the legal standards. That takes time.

Denial of social security disability does not mean that he or she is not medically disabled. It only means that the medical disability is not necessarily bad enough to render the individual totally unemployable. If there is medical evidence of a disability, the ADA and WLAD still apply.

VA disability percentage ratings are based on 2 things;

a) a table of well defined medical conditions which are considered to be disabling and
b) the average loss of income earning capacity experienced by other veterans who have had the same kind of illness or injury. (38 CFR 4.1.)

The fact of veteran disability is sufficiently established by current medical information, but for service connection, the record must also show that an original injury or illness occurred while the veteran was serving on active duty. The keystone element is a “nexus,” which is a medical opinion that the original condition is likely to be the source of the current condition.

A denial of service connection does not mean the veteran is not disabled. The disability usually exists, but is not yet shown to come from military service. Even if the rating is only 10%, the veteran is still protected under the ADA and the WLAD. To say that veteran disability does not count, is discrimination.

In VA and in L&I cases involving partial disability, the individuals are protected at least to the degree of the rating, if not more. Ratings are granted conservatively and with narrow criteria. Usually, there will be other disabling conditions not considered in the ratings. The higher the rating percentage, the more likely the there is greater disability.

This means the court cannot impute income on top of disability, or in addition to disability. That would imply a belief that the disabled person should be able to earn as much or more income than he or she could without disability.

If the individual's capacity to earn income is reduced by a partial disability, the imputation of income should be reduced by the same measure. As long as there is a final rating decision and all disabilities have been considered, this would produce a more realistic estimate of earning potential.

For example; If a veteran has a 30% rating and no further VA claims. The court could take a normal base-line income from the suggested table and reduce it by 30%. The remainder could be used on the worksheets INSTEAD of the 30% VA disability compensation, not in addition to it. Adding the imputation to the disability contradicts the disability by restoring the lost income and that makes no sense. Using the higher of the two values, increases the equity of the order, without abuse of discretion.

If the veteran has a pending VA claim or appeal, the court should exercise caution and provide the option to relieve the disabled veteran of imputed income when the disability is determined.

This is only a suggestion. The courts need more time and information to develop a working system. Perhaps the legislature can implement a system by statute.

Void Orders Must Be Vacated

So far, the best approach is to move for relief of the order under Washington Court Rule CR-60(b)(5) and/or (11) as needed. Statutes of limitation regarding time are suspended by disability, which would obviously prevent the disabled person from raising the issue. See RCW 4.16 sections 190, 250 & 260.

If the disabled person does not have an attorney to support the motion, the court must provide qualified counsel as a reasonable accommodation under General Rule 33, at no cost to the disabled person, as specified in 28 CFR 35.130(f).

Any qualified state or federal determination that the disability existed prior to a support order based on imputed income, reveals that the order is void because the imputation is void. The order is clearly unjust due to unforeseen error and void for lack of subject matter jurisdiction.

In most domestic support cases involving disabled veterans, neither the parties nor the court are sufficiently notified or informed, to determine the lack of subject matter jurisdiction, on the question of imputing income, until disability is revealed by the SSA and/or VA determinations.

Once the lack of subject matter jurisdiction is revealed, the court has a nondiscretionary duty to vacate the void order, regardless of how the court is informed, when or by whom. Neither res judicata nor the doctrine of laches can apply to protect void orders or to excuse any act of discrimination based on void orders.

“A trial court's decision to grant or deny a motion to vacate a default judgment is generally reviewed for an abuse of discretion.; however, a court has a nondiscretionary duty to vacate a void judgment.” Leen, 62 Wash. App. at 478; In re Marriage of Markowski, 50 Wash. App. 633, 635, 749 P.2d 754 (1988).

The disability determination also serves as the exceptional circumstances necessary to raise the consideration of CR-60(b)(11). It relates to other good reasons to allow the case for relief to come back to the court.

There is no reason for adversarial proceeding because the disability cannot be disputed or contradicted. The qualified determination of disability, by any state or federal authority with properly established subject matter jurisdiction, outweighs the unsubstantiated presumption of “voluntary unemployment.”

“Void judgments may be vacated regardless of the lapse of time.” In re Marriage of Leslie, 112 Wash. 2d 612, 618-19, 772 P.2d 1013 (1989). “Consequently, not even the doctrine of laches bars a party from attacking a void judgment.” Leslie, 112 Wash. 2d at 619-20.

“Parties cannot confer subject matter jurisdiction on the court by agreement between themselves; a court either has subject matter jurisdiction or it does not; if it does not, any judgment entered is void, and is, in legal effect, no judgment at all.” In re Marriage of Furrow, 115 Wn. App. 661 (2003), citing Wesley v. Schneckloth, 55 Wn.2d 90, 93-94, 346 P.2d 658 (1959).

Again, domestic support cases are not disability appeals and the court has no authority to modify, contradict or ignore the established fact of disability. Imputing income would be an act of discrimination by the abuse of discretion.

"A tribunal lacks subject matter jurisdiction when it attempts to decide a type of controversy over which it has no authority to adjudicate." Marley v. Labor And Industries, 125 Wn.2d 533, (1994). "A lack of subject matter jurisdiction implies that an agency has no authority to decide the claim at all, let alone order a particular kind of relief." Marley 125 Wn.2d 533.

Once disability is established, DCS must stop all enforcement actions, because they are prohibited by collateral estoppal. To continue enforcement knowing it was unjust, would be an act of discrimination.

Any enforcement errors involving the over collection of disability benefits, must be corrected by returning the benefits, with interest where applicable. This should be done as soon as it is possible to avoid costly litigation.

Arguments placing blame upon the disabled, for enforcement and collection of disability benefits, should be recognized as discrimination and should be dismissed as untenable ground.

Some have raised the argument that the original order satisfied the requirement of due process, but that would not excuse an enforcement violation of the minimum self-support reserve found in RCW 26.18.065. The argument fails again where the original order is void due to lack of subject matter jurisdiction.

Some have also raised the argument that the state provided thousands of dollars in support for the family of the disabled person and that it is the sole responsibility of the disabled person to repay the state. The fact that the family qualified for assistance based on need, does not diminish the fact that the disabled person also qualified for assistance based upon disability and need. In some cases, the disabled person still does. Placing an insurmountable burden of debt upon the disabled person would be an act of discrimination by abuse of discretion. This argument also fails where the original order is void and unjust.

Offset - Credit for Direct Payment

RCW 26.18.190 addresses the dependent benefits associated with disability under L&I, self-insured employers and the SSA. The VA is to the US military what L&I is to working employees in Washington and the US government may be considered a self-insured employer, so VA benefits could be covered in Section 1 of the statute.

RCW 26.18.190(2) demonstrates that the Washington legislature is aware of the fact that Social Security disability determinations take some time, resulting in a substantial, lump-sum, back payment of dependent support benefits. These dependent benefits are paid "on behalf of or on account of the child or children of a disabled person ... shall be treated for all purposes as if the disabled person ... paid the benefits toward the satisfaction of that person's child support obligation for that period for which benefits are paid." (Session laws 1995 c 236 § 1)

The dependent benefits begin on the same date as the disability benefits or the child's date of birth after disability benefits have started. They must be counted as specified in the plain and clear language of the statute, as support for the months covered by the benefit.

The disabled parent is entitled to the offset, meaning credit, for ALL dependent benefits paid directly, month-for-month, regardless of when the lump-sum payment occurs. See Parentage of Fairbanks, 142 wn. App. 949 (2008), citing In re Marriage of Briscoe, 134 Wn.2d 344, 348, 949 P.2d 1388 (1998), In re Marriage of Dicus, 110 Wn. App. 347, 353, 40 P.3d 1185 (2002), and all citing In re Marriage of Maples, 78 Wn. App. 696, 899 P.2d 1 (1995).

The dependent benefits, based on a parent's disability, should be made directly to the custodial parent to avoid conflict or confusion. L&I and the SSA require direct payment of dependent benefits to the custodial parent. The VA provides instructions for direct payment by apportionment. (38 CFR § 3.450). This could be included in the support order to minimize adversarial confrontation.

Conclusions

By the time most veterans receive any disability benefits, they have already lost everything they cared about. Some veterans have become homeless and some have been driven to suicide. These veterans, already disadvantaged by disability, are continuing to experience discrimination through exclusion, neglect and mistreatment in and out of the courtrooms.

This is only a small segment of a nationwide problem. There is no reason to ignore it and there is no excuse for it.

The courts have been uninformed and unaware of this problem for many years because nobody with a disability has been able to come back and tell them. We all have a duty to bring the issue of discrimination into the light of the court and to the attention of our elected representatives.

There may be other issues and avenues to explore with legal points that should be raised for discussion. Any argument that leads back to injustice through discrimination will have to be dismissed as absurd and untenable ground.

Likewise, any more recent case law that demonstrates the same judicial errors, discrimination or abuses of discretion, described in this report, should be reviewed and corrected rather than used as bad examples to justify further discrimination.

Circumstances of disabled veterans hang in the balance of financial stress against the time it takes to get through the VA. Support orders usually happen while the veteran is hanging. The result is discrimination which is not otherwise recognized and from which there has been little or no relief.

This appears to be the only viable method of getting the message to the courts. Someone needs to bring a GR-33 request for reasonable accommodation and ask the court to appoint a qualified attorney to bring a motion for relief under CR-60(b)(5) to vacate a void imputation of income against a disabled, therefore unemployable, veteran.

Recommendations

All garnishments of Social Security Disability and/or VA benefits should be halted and reviewed for discrimination. Some of them are based on void orders and many of them are enforcement violations of the self-support reserve.

Whenever a veteran family is involved in domestic support proceedings, and the veteran is unemployed and unrepresented before the court, this indicates that disability may be present. Before imputing income, the court should ask if disability is an issue. If it is, the court should offer to appoint a qualified, family law attorney to represent the veteran at no cost under GR-33.

Any disabled veteran who asks for help should be granted the reasonable accommodation of qualified counsel.

As soon as DCS and/or the court becomes aware of disability, steps must be taken to prevent and/or correct discrimination. Waiting for the disabled person to bring a legal action, would be discrimination by professional negligence.

The veterans coming home to Washington will need help filing their VA and SSA claims and finding resources to live on while awaiting decisions. We should be helping them.

We should ask our legislators to consider a statutory provision to specify that veterans have the VA dependent benefits go directly to their dependents by apportionment and to account for that direct payment in a new RCW under 26.18.190, similar to the SSA provision.

Our elected representatives need our input, and our support, to provide specific funding to the Washington Department of Veterans Affairs and to recognized veterans service organizations to assist veterans with VA and Social Security disability claims. Otherwise, some will get lost and some never return.

Acknowledgements

I wish to thank Pam Davidson of the Washington Office of Financial Management, Janet Hentze and Scott Fulton of the Department of Social and Health Services, the Pierce County Law Library, the State Library, the Office of the Code Reviser, the Washington State Bar Association and the Access to Justice Board, the Department of Veterans Affairs, local and national Veterans Organizations and many others for providing helpful information and insight into these issues facing disabled veterans and their families.



I also wish to thank my fellow veterans for your continued service, dedication, counsel and care.
Whether you know it or not, you save lives.

Resources and Internet Links:

United States Code (USC) and the Code of Federal Regulations (CFR):

Federal Resources

Revised Code of Washington and Washington Administrative Code,

Washington Court Rules and Court Information



Copyright © November 28, 2012 By Robert Terrien
All Rights Reserved

Valid HTML 4.01 Transitional