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decided: October 8, 1982.


Appeal from the Order of the Department of Public Welfare in case of Appeal of Nancy Fredericks, Case No. 30270-R.


Judith E. Wilson, for petitioner.

Jean E. Graybill, Assistant Counsel, for respondent.

Judges Rogers, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge MacPhail. Dissenting Opinion by Judge Doyle.

Author: Macphail

[ 69 Pa. Commw. Page 316]

Nancy L. Fredericks (Petitioner) has appealed from the final order of the Department of Public Welfare (Department) which affirmed the decision of a hearing examiner that court-ordered support payments made by Petitioner's husband to his children by a previous marriage, must be included as income to Petitioner's household for food stamp purposes.

The facts in this case, as found by the hearing examiner, are undisputed. Petitioner, the mother of four minor children, received food stamps for her five person household in the monthly amount of $188 through March 31, 1981. The County Assistance Office (CAO) discontinued the household's food stamps effective April 1, 1981, however, due to its recalculation of the household's income following the return of Petitioner's husband to the household. According to the CAO's calculation, the household now has a net monthly income of $891, which includes Petitioner's husband's earnings as well as AFDC assistance received for Petitioner's children. Since this amount

[ 69 Pa. Commw. Page 317]

    exceeds the $825 maximum allowable net monthly income for a household of six under the food stamp program, the CAO determined that Petitioner's household no longer qualified for food stamps.

The fact which gives rise to the instant appeal is that Petitioner's husband pays approximately $150.50 per month in court-ordered child support for his three children by a previous marriage. This money is deducted directly from his gross pay pursuant to a wage assignment which Petitioner's husband voluntarily executed. Petitioner contended below that the amount paid by her husband for child support should be excluded from the computation of the household's income for food stamp purposes. The hearing examiner found that Department regulations do not provide for the exclusion or deduction of child support payments from income and that all of the wages earned by Petitioner's husband must be treated as income to the household. The Office of Hearings and Appeals affirmed the hearing examiner's decision and the instant appeal was taken.

Two issues have been raised for our consideration: 1) whether or not moneys used for court-ordered child support payments must be included for food stamp purposes as income to the household which makes the payments and 2) whether or not the treatment of such moneys as income violates the household members' due process and equal protection rights under the United States Constitution.

With regard to the first issue, Department regulations provide that all payments received by a household are considered to be income for food stamp purposes unless specifically excluded by the regulations. 55 Pa. Code § 523.3(a). Petitioner contends that child support payments are excluded from income by the following Department regulation:

[ 69 Pa. Commw. Page 318]

Only the following payments received by household members will not be considered income to the household:

(8) Funds for nonhousehold member. Monies received and used for the care and maintenance of a third-party beneficiary who is not a household member.

55 Pa. Code § 523.3(c)(8). This provision implements Section 2014(d)(6) of the federal Food Stamp Act of 1977 (Act).*fn1 The legislative history of Section 2014(d)(6) states that:

[T]his section would exclude moneys received by a household, but used for the care and maintenance of another person who is not a household member, for example, a relative's pension check that goes to and is cashed by the household and then is used to support that relative in an institution. (Emphasis added.)

H.R. Rep. No. 464, 95th Cong., 1st Sess. (1977), reprinted in, [1977] 2 U.S. Code Cong. & Ad. News 2013.

Although brief, this legislative history leads us to conclude that court-ordered child support payments were not intended to be excluded from income under Section 2014(d)(6). We think there is a definite distinction to be drawn between the example provided by the legislative history and the instant case. The pension check, as indicated in the example, would be received by the household on behalf of the third-party beneficiary relative. Thus, the household would act merely as a conduit through ...

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