The Status of Maintenance (For Seamen) and Child Support in Washington After Aguilera v. F/T Alaska Juris, 535 F.3d 1007. 2008 AMC 1845 (9th Cir. 2008)

By John Merriam

Earlier in these pages (Trial News, May 2008), this practitioner suggested that it was not proper to deduct $10/day in child support from an injured seaman who received only $20/day in maintenance to pay for all his living expenses. The Ninth Circuit disagreed, at least insofar as a child support order from Texas was concerned. Aguilera v. F/T Alaska Juris, 535 F.3d 1007, 2008 AMC 1845 (2008). A brief recap of the facts:

Rafael Aguilera worked for the Fishing Company of Alaska (FCA) as a processor aboard the factory-trawler Alaska Juris. He suffered a hernia and filed a lawsuit in federal court, pursuant to the Jones Act and the general maritime law, in Seattle. FCA started paying maintenance at the contractual rate of $20/day. The Attorney General of Texas served FCA with a lien for child support. FCA started deducting $10/day from maintenance to satisfy the child support lien. Aguilera filed a motion, requesting a declaration that maintenance is not income, as a matter of federal maritime law, and should not be reduced under the authority of a Texas state court. Judge James Robart denied the motion, ruling that maintenance was subject to garnishment under the state law of Texas. The rest of the case settled and Aguilera appealed only the maintenance/child support issue. In the Ninth Circuit Aguilera argued that maintenance should be defined by maritime law, rather than state law, and urged again that maintenance was not income subject to child support liens or any other type of garnishment.

The Ninth Circuit affirmed Judge Robart’s decision, holding that state law should determine the nature of maintenance and that, as a matter of Texas law, maintenance constituted “resources” subject to the child support lien. To get to this result, the appellate court first equated maintenance with a seaman’s wages. It used this premise to rule that maintenance is subject to attachment just like wages are. Continuing with this line of reasoning, the court cited 28 U.S.C. sec. 1738B(h)(2) to justify its decision that child support orders should be interpreted according to the law of the issuing state. Aguilera, 2008 AMC at 1846-47.

Obviously, the author disagrees with this decision. It seems axiomatic that the nature of maintenance should be defined by the federal maritime law. Even under state law, the reader can decide for herself whether maintenance, a bare-bones living stipend, should be treated as the equivalent of wages. This practitioner has no problem with attaching a seaman’s wages for child support, but attaching maintenance to satisfy a child support lien only creates another person—the destitute seaman—who qualifies for public assistance, without providing enough money ($10/day!) to get the dependent child off public assistance. Leaving the injured seaman with only the remaining half of maintenance (also $10/day) to live on, invites—if not another application for public assistance—starvation, homelessness or crime. Regardless of one’s political or social views, none of these outcomes comport with the public policy surrounding the payment of child support.

In its rush to reach a politically-correct result, the Ninth Circuit refused to recognize the fundamental difference between maintenance and wages. Nevertheless, Aguilera is now the law in this federal circuit and we are stuck with it. However, strictly construed, the Aguilera decision is limited to Texas and does not directly control child support orders from any states in the Ninth Circuit. In Washington, for example, only “income” can be attached to satisfy child support liens. Income is defined at RCW 26.19.071(3). There is no mention of seamen but the definition does include spousal “maintenance”. Excluded from the definition of “income” are SSI, general assistance (state welfare payments), food stamps, and “temporary assistance for needy families”. Id.

When next presented with a similar case, it is this practitioner’s intention to bring an action against the State of Washington, in King County Superior Court, praying for a declaration that a seaman’s maintenance does not constitute “income” as a matter of state law. This ain’t over . . . .

WSTLA EAGLE member John Merriam is a former merchant seaman in solo practice at Fishermen’s Terminal in Seattle, where he restricts his practice to the representation of maritime claimants for wages and injury.

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