Child-support A state judge's ruling clears the way for at least $3.5 million in unpaid child support payments to be sent to the children to whom they belong.
pay ordered
A judge rules that the state
child-support agency must pay upBy Debra Barayuga
dbarayuga@starbulletin.comCircuit Judge Sabrina McKenna ordered the Hawaii Child Support Enforcement Agency yesterday to come up with a detailed accounting of all uncashed checks and amounts unpaid because they were returned due to incorrect addresses.
The accounting was part of a 52-page decision issued yesterday by McKenna in a class-action lawsuit that arose from the agency's alleged failure to send out child support payments within two business days as required by law. Plaintiffs' attorneys estimate thousands of children and custodial parents are affected by the decision.
McKenna found that the plaintiff class had a constitutionally protected property interest in child support payments. She also ruled the agency had a "fiduciary duty" to ensure those payments are disbursed in a timely manner.
Both the plaintiffs and the state Attorney General's Office, which represented the agency, claimed victory after the ruling.
Plaintiffs' attorney Frank O'Brien said the accounting is what they had sought all along. "It's a tremendous victory because (the court) recognized the property rights of the individual, the fiduciary duty of the agency and requires the money that they've been holding all these years which belongs to the people and children has to be paid out. And we think that's wonderful."
Throughout the trial, the state would not recognize that it had a fiduciary duty to the custodial or noncustodial parents and the children, said Christopher Ferrara, another plaintiffs' attorney.
The state's adversarial position dismayed them "because all this was for the children to get the money they were entitled to all along," Ferrara said. "The money they were holding was not state money -- it's money that belongs to these people in the first place."
O'Brien said he said he believes McKenna's ruling is the first in the country where a state court ruled in favor of the plaintiffs in a lawsuit against a child enforcement agency.
State Attorney General Earl Anzai said McKenna ruled in the state's favor when she found that the plaintiffs failed to prove their allegation that the agency had $9 million in unpaid child support payments that remain unaccounted for.
The judge also found that since 1998, when the agency switched to an automated collection system and experienced start-up problems, "the CSEA has been disbursing the overwhelming majority of child support payments received ... within two days of its receipt of the forwarded checks."
"It looks like a pretty good verdict for us," Anzai said.
The accounting ordered for the un-cashed checks and bad-address checks was not even called for in the complaint, he said. "It's hard for us to force people to cash checks."
The state estimates that the agency has about $3.5 million of un-cashed and "bad address" amounts in its possession as of February. That amount likely will increase by December and once the accounting is completed, Ferrara said. He said they will try to reopen negotiations with the state in hopes of a settlement.
The state has until March to provide the court with the detailed accounting as of Dec. 31. Once it is completed, the court and parties will decide how the money will get to those entitled to it. If child support recipients cannot be found, the money will be put in a common fund for the benefit of all plaintiffs.
Hawaii Child Support Enforcement Agency
