J-A29021-14



                               2014 PA Super 251



BETTY UVEGES,                                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

SAMUEL L. UVEGES

                          Appellant                 No. 259 WDA 2014


               Appeal from the Order entered January 21, 2014,
               in the Court of Common Pleas of Greene County,
                  Civil Division, at No(s): A.D. No. 1333, 2009

BEFORE: BOWES, ALLEN, and STRASSBURGER,* JJ.

OPINION BY ALLEN, J.:                          FILED NOVEMBER 05, 2014

      In this appeal, we decide whether Betty Uveges (“Wife”) may attach

the disability benefits of Samuel L. Uveges (“Husband”), pursuant to the

Longshore and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. §

901, et seq.     We affirm the trial court’s determination that Husband’s

disability benefits may be attached to pay Husband’s alimony obligation.

      The trial court summarized the pertinent facts and procedural history

as follows:

            [The parties] were married on June 3, 1972, in Greene
         County, Pennsylvania.    A divorce complaint was filed
         December 10, 2009. On January 21, 2010, [the parties]
         entered into an Agreement that expressed the “desire and




*Retired Senior Judge assigned to Superior Court.
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       intention of the parties . . . to amicably adjust,
       compromise and settle all property rights, and all rights in
       and to or against the property or estate of the other . . .
       and to settle all disputes existing between them.”
       According to Paragraph 6 of the Agreement, Husband
       would pay to Wife the sum [of] $2,500.00 per month for
       permanent alimony, modifiable only by remarriage,
       cohabitation, or the receipt by Wife of social security
       disability payments. The divorce became final on August
       1, 2011.

          On February 15, 2012, Wife filed a petition to enforce
       the agreement alleging Husband’s failure to make any of
       the required alimony payments after January 1, 2012.
       Following a hearing, we entered an order on April 10,
       2012, which among other things provided for the
       attachment of Husband’s monthly benefits under the
       [LHWCA]. We also found Husband in contempt and issued
       a bench warrant.

          On May 4, 2012, a petition for special relief was filed by
       Consolidated Coal Company [(“Consol”)], Husband’s
       previous employer, which claimed that benefits payable to
       beneficiaries under the [LHWCA] are exempt from
       attachment. On October 26, 2012, we entered another
       order providing for other means of enforcement, such as
       attachment of Husband’s UMWA pension benefits and
       social security benefits. We also entered an award for
       counsel fees. Part of the order vacated the portion of the
       April 10, 2012 order that called for attachment of
       Husband’s [LHWCA] benefits.       On May 10, 2013, we
       entered yet another enforcement order authorizing the
       transfer to Wife of certain real property awarded to
       Husband by the Agreement.

          On September 27, 2013, represented by new counsel,
       Wife filed another motion for contempt, again asking for
       attachment of Husband’s [LHWCA] benefits. We scheduled
       a hearing for December 2, 2013, after which we requested
       briefs. After review of those briefs and after consideration
       of the applicable law, we concluded on January 15, 2014
       that the law permits an ex-spouse in Wife’s position to
       attach the [LHWCA] retirement or disability benefits of an
       ex-husband who has been found to be in contempt.
       Husband appealed and filed a [Pa.R.A.P. 1925(b)]

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          Statement complaining of our ruling that his [LHWCA]
          benefits were subject to attachment.

Trial Court Opinion, 3/24/14, at 1-3.

       On January 21, 2014, the trial court entered a second order which

provided:

          1. The Court finds that [Husband] owes an arrearage of
          $56,912.80 for back Alimony payments due as of the date
          of this Order.

          2. The Court further awards [Wife] $15,000.00 in total
          attorney’s fees due as of the date of this Order.

          3. An attachment of [Husband’s] income is hereby issued
          such that the sum of $2,000.00 per month shall be
          deducted and withheld from [Husband’s] monthly
          [benefits] awarded to [Husband] pursuant to the [LHWCA].
          This amount shall increase by 50% of any future increases
          in [Husband’s] award. This represents $2,500.00 [sic] a
          month for ongoing alimony and the remainder to be paid
          towards arrearages and [Wife’s] attorney’s fees.

          4. The attachments of [Husband’s] UMWA Benefits and
          Social Security Benefits are to continue in the amounts of
          $471.75 and $517.80 respectively towards [Husband’s]
          arrearages and [Wife’s] attorney’s fees.

Order, 1/21/14, at 1. This timely appeal followed. 1 Both Husband and the

trial court have complied with Pa.R.A.P. 1925.2
____________________________________________


1
  In his notice of appeal, Husband asserts that he is appealing from the trial
court’s orders entered on January 15, 2014 and January 21, 2014. Because
we consider the former order interlocutory, we consider Husband’s appeal to
be from the January 21, 2014 order. We have amended the caption
accordingly.
2
  Subsequently, Consol filed a complaint for interpleader with the federal
district court, as well as a motion to deposit funds in the amount of
(Footnote Continued Next Page)


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      Husband raises the following issues:

          [I.] WHETHER THE TRIAL COURT COMMITTED AN ERROR
          OF LAW IN ORDERING THAT ANY OR ALL OF [HUSBAND’S]
          MONTHLY INDEMNITY BENEFITS PAYABLE UNDER AND
          PURSUANT TO THE DICTATES OF THE [LHWCA] IS
          SUBJECT TO ATTACHMENT, WHEN SAME IS SPECIFICALLY
          PRECLUDED PURSUANT TO 33 U.S.C. § 916?

          [II.] WHETHER THE TRIAL COURT COMMITTED AN ERROR
          OF LAW IN ORDERING THAT IT WOULD ENTER A MOTION
          AND PROPOSED ORDER FOR ATTACHMENT OF THE
          BENEFITS PAYABLE TO [HUSBAND] PURSUANT TO THE
          TERMS OF THE [LHWCA]?

Husband’s Brief at 3. Because both of these issues challenge the trial court’s

conclusion that Husband’s LHWCA benefits may be attached to pay alimony,

we address them together.

      Husband argues that there is no exception to the LHWCA’s anti-

alienation clause that would permit Wife to attach his benefits in order to

recover alimony. Citing Thibodeaux v. Thibodeaux, 454 So.2d 813 (La.

1984), Husband argues that Wife cannot attach his LHWCA benefits “since it

was Congress’ intent that the benefits should go to the disabled worker
                       _______________________
(Footnote Continued)

$72,912.80, representing $56,912.80 in alimony and $15,000.00 in
attorney’s fees.    Deciding that it should allow the Superior Court to
determine the legal question of attachment, the federal court caused the
case to be marked administratively closed. It further ordered that the
parties “may petition this Court for disbursement of funds once a final ruling
is issued by the Courts of the Commonwealth of Pennsylvania as to whether
[Husband’s] [LHWCA] benefits may be attached.”              See generally,
Consolidated Coal Co. v. Uveges, 2014 U.S. Dist. LEXIS 93320, filed July
9, 2014.




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directly, without any attachment, as per Section 16.” Husband’s Brief at 8.

According to Husband, “[a]pplying the supremacy clause, the [Louisiana

Supreme Court in Thibodeaux] reasoned that to allow a wife to garnish

these benefits would have required carving out a jurisprudential exception to

Congress’ anti-attachment clause, which the strong language of the

[LHWCA] does not permit.” Id.

      “The   LHWCA    was     enacted    by   Congress   to   provide   workers’

compensation benefits to persons injured in the course of maritime

employment.”    Thibodeaux, 454 So.2d at 813.        “Maritime employers are

liable for and must ensure the payments as compensation for disability are

made to the employee periodically, promptly and directly, and employers

that are not qualified self-insurers must secure these payments by insurance

with a carrier approved by the Secretary of Labor.” Id. (footnotes omitted).

The payments are protected by the anti-attachment clause of the LHWCA,

which reads as follows:

         § 916. Assignment and exemption from claims of creditors

         No assignment, release, or commutation of compensation
         or benefits due or payable under this Act, except as
         provided by this Act, shall be valid, and such compensation
         and benefits shall be exempt from all claims of creditors
         and from levy, execution, and attachment or other remedy
         for recovery or collection of a debt, which exemption may
         not be waived.

33 U.S.C. § 916. The applicability of this clause of the LHWCA is one of first

impression in Pennsylvania.



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      In concluding that Husband’s LHWCA benefits could be attached, the

trial court “decline[d] to accept the rationale of [Thibodeaux, supra].”

Trial Court Opinion, 3/24/14, at 4. Instead, the trial court cited this Court’s

decision in Parker v. Parker, 484 A.2d 168 (Pa. Super. 1984). In Parker,

we concluded that a similarly worded anti-attachment clause in the statute

governing     the   husband’s     service-connected     disability   Veterans’

Administration benefits did not preclude the trial court from considering

those monthly payments as a source of income for alimony pendente lite

purposes. This Court noted that the purpose of the anti-attachment clause

was “to protect the recipient of the benefits from claims of creditors, and to

afford some degree of security to the recipient’s family and dependants.”

Parker, 484 A.2d at 169 (citations omitted).          Given this purpose, we

concluded that the anti-attachment clause did not apply “since a wife

seeking to recover alimony pendente lite is not a ‘creditor’ of her husband,

the claim not being based on a debt.” Id.

      The trial court then cited with approval the federal Ninth Circuit

decision in Moyle v. Director, Office of Workers’ Compensation

Programs, 147 F.2d 1116 (9th Cir. 1998), certiorari denied, 1999 U.S.

LEXIS 2578 (1999), in support of its conclusion that Husband’s LHWCA

benefits may be attached for the collection of alimony.        In Moyle, the

recipient of benefits under the LHWCA appealed from a decision of an

Administrative Law Judge (“ALJ”) which concluded that the disability benefits

could be garnished to satisfy the recipient’s delinquent spousal support

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obligation. In affirming the ALJ’s decision, the Circuit Court agreed with the

ALJ’s determination that the later-enacted Social Security Statute, 42 U.S.C.

§ 659 (“SSA Garnishment provision”), impliedly repealed section 916 of the

LHWCA, and permitted garnishment.

       Enacted in 1975,3 the relevant part of the SSA Garnishment provision

reads as follows:

             Notwithstanding any other provision of law . . . 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 or the District of Columbia
          were a private person, . . . to any . . . legal process
          brought, by a State agency administering a program under
          a State plan approved under this part or by an individual
          obligee, to enforce the legal obligation of the individual to
          provide child support or alimony.

Moyle, 147 F.3d at 1119 (quoting 42 U.S.C. § 659(a)). The Moyle court

further noted the ALJ’s acknowledgement that “the Office of Personnel

Management promulgated a regulation that expressly provides that LHWCA

benefits are subject to garnishment pursuant to the SSA Garnishment

provision.” Id. (citing 5 C.F.R. § 581.103(c)(5)).




____________________________________________


3
    The LHWCA was enacted in 1927. See Moyle, 147 F.3d at 1118 n.2.




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        Here, the trial court, accepting the above rationale, concluded,

“Husband’s benefits under [the LHWCA] are remuneration for employment

and are therefore available for attachment to provide for the support of his

dependants. That support is not money owed to a ‘creditor’ nor is it a ‘debt’

within the meaning of the [LHWCA].” Trial Court Opinion, 3/24/14, at 4.

        Husband asserts that the trial court’s reliance upon Moyle is

inapposite, because the recipient of LHWCA benefits in that case received

them from a “Special Fund” established by the LHWCA. See Husband’s Brief

at 9.     According to Husband, “a distinction must be drawn between

compensation      benefits      payable      by      an   employer/carrier      and

compensation benefits payable by the [Special] Fund. Only the latter

benefits would be subject to garnishment; there are currently no published

cases on this issue.” Husband’s Brief at 9-10.

        A close reading of Moyle refutes Husband’s claim. The Ninth Circuit in

Moyle found the LHWCA disability benefits could be considered as

“remuneration for employment,” because the SSA Garnishment provision

defines that term to include “workers’ compensation benefits paid or payable

under Federal or State law[.]” Moyle, 147 F.3d at 1120 (quoting 42 U.S.C.

§   659(h)(A)(iii)).    Thus,    in   this   case,    because   Husband’s   workers’

compensation payments are made pursuant to federal law, they may be

attached in order to meet his alimony obligation.

        Moreover, as explained in Moyle, “[s]ection 908(f) of the LHWCA

limits an employer’s workers compensation liability to the first two years of

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permanent disability, with subsequent compensation coming from the

Special Fund.”        Moyle, 147 F.3d at 1118, n.1 (citing 33 U.S.C. §

908(f)(2)(A).     “The Special Fund is financed by a yearly assessment on

certain maritime businesses.” Id. (citing 33 U.S.C. § 944(c)). Although the

Treasurer of the United States is the custodian of the Special Fund, Moyle,

147 F.3d at 1122, and administers the Special Fund, it is funded by the

private employers.4        Moreover, subsequent case law has made no such

distinction when discussing the attachment of LHWCA benefits to satisfy the

recipient’s support obligations. See infra.

       Finally, in several contexts, Pennsylvania precedent has recognized

that a spouse’s alimony and/or support obligations are not “debts.” Parker,

supra. See also Hogg v. Hogg, 816 A.2d 314, 318-19 (Pa. Super. 2003)

(acknowledging that the federal bankruptcy code traditionally “has protected

non-debtor spouses and children by precluding discharge of a debtor

spouse’s alimony and support obligations”); Buccino v. Buccino, 580 A.2d

13, 14 (Pa. Super. 1990).

       There is support in case law from other states for the trial court’s

conclusion that Wife is not a “creditor” and support or alimony allegations


____________________________________________


4
 Husband’s attempt to distinguish Parker, supra, is also inapt. We cannot
agree with Husband that the benefits being paid by the Veterans’
Administration “is akin to the Special/Trust Fund under 33 U.S.C. § 908(f).”
Husband’s Brief at 10. Husband provides no support for this analogy.




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are not a “debt” under the LHWCA. See, e.g., Cigna Property & Casualty

v. Ruiz, 834 So.2d 234, 236 (Fla. 3rd DCA 2002), review denied, 846 So. 2d

1147 (Fla. 2003), certiorari denied, 2013 U.S. LEXIS 7728 (2003)

(concluding that section 916 of the LHWCA applied only to “claims of

creditors” or attachment or execution for “collection of a debt” and then

concluding that, under Florida law, a child support obligation is “not a debt”).

In Ruiz, the Florida court further distinguished the holdings of cases such as

Thibodeaux, supra, because such cases were decided prior to the 1996

amendment to the non-alienation provisions of the Social Security Act,

which, pursuant to Moyle, supra, “has been held to have impliedly repealed

the non-alienation provision of the LHWCA with regard to delinquent support

obligations.”   Ruiz, 834 So.2d at 236, n.2.      See also Cigna Property &

Casualty v. Ruiz, 254 F.Supp.2d 1262; 2003 U.S. Dist. LEXIS 4673

(dismissing     without   prejudice   insurance   carrier’s   interpleader   action

regarding attachment of LHWCA benefits, in light of state court’s decision in

Ruiz, supra).

      In sum, because Husband’s LHWCA benefits are paid to him pursuant

to federal law, and because Wife is not a “creditor” and Husband’s alimony

obligation is not a “debt” under 33 U.S.C. section 916, the LHWCA benefits

may be attached. Additionally, we note our decision today is consistent with

the historical treatment by Pennsylvania appellate courts of anti-attachment

clauses vis-à-vis a claim for support or alimony.        See, e.g., Hollman v.

Hollman, 528 A.2d 146, 148-49 (Pa. 1987) (concluding that a trial court

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could attach a husband’s pension, which was established under the

Employee Income Security Act of 1974, 29 U.S.C.A. §§ 1001, et seq.

(“ERISA”), to satisfy arrearages on spousal support payments, despite

statutory anti-attachment provisions); Com. ex rel Magrini v. Magrini,

398 A.2d 179, 181-83 (Pa. 1979) (holding that a trial court could attach

husband’s pension to satisfy arrearages on spousal support obligations

despite state statutory anti-attachment; this Court also rejected the

husband’s claim that the federal ERISA statute or provisions of the Internal

Revenue Code superseded state law). We therefore affirm the trial court’s

January 21, 2014 order attaching Husband’s LHWCA benefits for the

payment of alimony.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/5/2014




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