In a case of first impression, the Fourth District Court of Appeals affirmed a trial court’s ruling that two benefits received by a member of the Navy – “basic allowing for housing” (BAH) and “basic allowance for subsistence” (BAS) – can be considered income for purposes of child and spousal support. Father argued that inclusion of these benefits was improper because under federal law they are not taxable income and the court violated the federal preemption doctrine by holding that they were income for purposes of support. The trial court disagreed, stating that “(i)f it looks like income, it is income no matter how it’s paid to you.” In affirming the trial court, the panel cited and quoted from sister state cases on this issue, which have held that “(t)he nontaxable status of military allowances does not suggest Congress had any preemptive intent with regard to either child or spousal support” and “the protection of certain military allowances from wage garnishment for support arrearages does not indicate Congress intended to preempt state family support law.” It concluded that “the doctrine is inapplicable, as under United State Supreme Court authority family law support matters are within the province of state law unless ‘Congress has positively required by direct enactment’ that state law be pre-empted.’ We join in courts across the nation in holding that such allowances of are included in a party’s gross income for purpose of support when state law encompasses them.”
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