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| Ivansco and Constitutionality of Child support County of Orange v. Ivansco,
67 Cal.App.4th 328, 78 Cal.Rptr.2d 886 (Cal.App. Dist.4 10/16/1998)
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California Court of Appeals
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G018839
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67 Cal.App.4th 328, 78 Cal.Rptr.2d 886, 1998.CA.30141
<http://www.versuslaw.com>, 98 Cal. Daily Op. Serv. 7862
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October 16, 1998
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COUNTY OF ORANGE, PLAINTIFF AND RESPONDENT,
v.
WILLIAM B. IVANSCO, DEFENDANT AND APPELLANT.
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Hosford & Hosford and Valerie Ryall Hosford for Defendant and Appellant. Daniel E.
Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Carol
Ann White, Statewide Child Support Coordinator, and Mary A. Roth, Deputy Attorney General,
for Plaintiff and Respondent.
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CERTIFIED FOR PUBLICATION
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(Super. Ct. No. AD-57734)
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Appeal from a post-judgment order of the Superior Court of Orange County, Richard G.
Vogl, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed and remanded.
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William Ivansco appeals from a post-judgment order modifying his child
support obligation. We reverse, finding Family Code section 4071.5
unconstitutional. *fn1
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I.
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In 1992, the court found Ivansco the father of twins, Jamie and
Alexander, born to Loura Tyler on September 21, 1989. The court set child support
at $512 per month, commencing May 15, 1992, and ordered Ivansco to reimburse
the county for Aid to Families with Dependent Children (AFDC) payments it had advanced to
Loura since August 1990.
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On August 10, 1995, the County of Orange (the county) filed the underlying order to
show cause seeking to increase the monthly child support
order. Loura was still receiving AFDC. Ivansco's circumstances had changed;
his 14-year-old son from a prior marriage now lived with him. Because the teenager's
mother paid no support, Ivansco provided all of his living expenses. After a
contested hearing, the court increased Ivansco's monthly child
support order for the twins to $975.
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II.
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Ivansco raises only one issue on appeal. He maintains the trial court
erred in failing to consider deductions set forth in section 4059, subdivision (g) and
section 4071, subdivision (a)(2) (formerly Civ. Code, § 4722, subds. (a) & (b)). He
argues section 4071.5 (formerly Civ. Code, § 4722.5) is unconstitutional because it
deprives the trial court of discretion to consider a payor's expenses for children living
with him or her if the children for whom support is being determined are AFDC recipients. *fn2 As we will now explain, we agree.
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Statutory Scheme
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The Legislature enacted child support guidelines "to
promote fair and adequate child support awards throughout the
state of California and to avoid substantial variation of those awards among similarly
situated families. [Citations.] In furtherance of its intent, the act provides for a
system of standards and procedures which are used by the courts in determining [an] . . .
award of child support in each case." (County of San
Diego v. Sierra (1990) 217 Cal.App.3d 126, 130-131.)
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Section 4055 sets forth the formula by which child support
is determined. Parents' net disposable incomes, particularly the high earner's, are
essential parts of the calculation. Section 4059, subdivision (e) delineates net
disposable income as the parent's gross income, minus certain deductions. One such
deduction is "any child support actually being paid"
for children who do not reside with that parent. (Ibid., italics added.)
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However, a court does not automatically deduct a parent's contributions towards basic
living expenses for a child who does reside with the payor. Rather, the court may consider
those expenses pursuant to sections 4059, subdivision (g) and 4071, subdivision (a)(2).
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At issue here is a trial court's lack of discretion to consider a parent's
contributions towards basic living expenses for children who reside with them when AFDC
"payments are being made . . . on behalf of a child . . . of the parent seeking the
deduction . . . ." (§ 4071.5, italics added.) As a result, the trial court could not
consider Ivansco's expenditures for his teenager because the twins are AFDC
recipients.
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Justice King observed the hardship deductions pursuant to sections 4059, subdivision
(g) and 4071, subdivision (a)(2) are of great significance to `"solid, middle-class
people. The cost of living . . . for these people takes every penny they have.'" (In
re Marriage of Paulin (1996) 46 Cal.App.4th 1378, 1382.) Certainly, the results are
impressive here. The court found Ivansco's net monthly income was $2,437. He
testified he spent $680 for his teenager. Had Ivansco been paying $680 child
support, his guideline net disposable income would have been reduced to
$1,757 and the child support order correspondingly reduced
from $975 to $703. Alternatively, had the twins not been AFDC recipients, the court could
have considered at least part of the $680 Ivansco spent for his teenager
residing with him. *fn3
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Equal Protection
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Section 4071.5 creates two classes of parents paying child support.
Both groups support children who do not reside with them and children who do reside with
them. The difference is some of the parents support non-custodial children who receive
AFDC, while others support non-custodial children who do not receive AFDC. Not
surprisingly, the child support orders of parents of AFDC
recipients are greater than those of similarly-situated parents of non-AFDC children. As a
result, the parents in the former group have less money available for the support of the
children who reside with them.
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"`The concept of the equal protection of the laws [under the Fourteenth
Amendment] compels recognition of the proposition that persons similarly situated with
respect to the legitimate purpose of the law receive like treatment.' [Citations.]
Although this concept does not require absolute equality[,] . . . or that a statute
necessarily apply equally to all persons[,] . . . a state may not provide for differences
that amount to invidious discrimination. [Citations.] [¶] This clause `forbids the
establishment of laws which arbitrarily and unreasonably create dissimilar classifications
of individuals when, looking to the purpose of those laws, such individuals are similarly
situated.' [Citations.]" (Hypolite v. Carleson (1973) 32 Cal.App.3d 979, 986-987.)
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Ivansco argues these classifications infringe upon his fundamental right
to support the teenager who resides with him. He also argues the statute violates Welfare
and Institutions Code section 11205 which mandates parents must "provide sufficient
support and protection of [their] children . . . ." *fn4
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The county does "not dispute ...there is a fundamental right to rear one's own
children in one's own household." Rather, it argues Ivansco's
"fundamental right to raise his teenage son is [not] invidiously compromised by . . .
section 4071.5." (Italics added.) It contends "when all the columns are totted
up, appellant is no worse off financially than he would be were his young sons not on
AFDC." *fn5
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The county is correct to a point. The court would not have automatically deducted Ivansco's
expenses for his teenage son even if the twins were not AFDC recipients. And assuming the
court had considered the expense, the difference in the amount of the order may have been
relatively insignificant. But this is not a case of "what would have happened if . .
. ." Harmless error has no place in the determination of a statute's underlying
constitutionality.
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Standard of Review
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When "the classification involves a fundamental right[,] . . . the legislation is
looked at much closer and it is harder to uphold the act if there is a constitutional
attack." (County of Los Angeles v. Patrick (1992) 11 Cal.App.4th 1246, 1252.) Indeed,
"under this very severe standard, a discriminatory law will not be given effect
unless its classification bears a close relation to the promoting of a compelling state
interest, the classification is necessary to achieve the government's goal, and the
classification is narrowly drawn to achieve the government's goal by the least restrictive
means possible." (Board of Supervisors v. Local Agency Formation Com. (1992) 3
Cal.4th 903, 913.)
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Government Goal
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Section 4071.5 was enacted as part of an overall welfare reform package. Its
legislative history does not shed much light on its intent. *fn6 However, a review of similar legislation previously considered by
the Legislature makes its goal crystal clear. The statute proposed "to discourage
growth of family size while on AFDC by not paying for any additional children born 10
months after the family has been on AFDC . . . or for any additional child conceived while
either parent is receiving AFDC . . . ." *fn7
(Assem. Com. on Human Services, Aug. 5, 1992 Hearing of Sen. Bill No. 1834 (1992-1993 Reg.
Sess.) as amended July 30, 1992.)
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State Interest
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We need not decide whether the Legislature's desire to reduce the number of children
born to AFDC families constitutes a compelling state interest. Even if the answer is yes,
the statute, as written, is too broad because it includes Ivansco, whose
teenager was born before the twins became AFDC recipients.
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The legislation is infirm even if we assume the Legislature intended to reduce welfare
costs in general. The county pays $535 in monthly AFDC benefits for the twins. *fn8 Pursuant to Welfare and Institutions Code
section 11450, subdivision (a)(1), any money Ivansco pays in child
support goes first to the county as reimbursement for its contributions.
Loura gets everything over that amount. "[T]he non-custodial parent . . . shall be
obligated to the county for an amount equal to . . . [¶] . . . [t]he amount specified in
an order . . . [¶] . . . provided that any such amount in excess of the aid paid . . .
shall not be retained by the county, but disbursed to the family." (Welf. & Inst.
Code, § 11350, subds. (a)(1) & (2).) Accordingly, permitting the court to reduce Ivansco's
child support order based on the expense of raising his
teenager does not affect welfare expenditures. As long as Ivansco's child
support order is at least $535, the county gets back all that it pays out.
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Rational Relationship
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The result is the same if we conclude the statute does not infringe upon a fundamental
right. The rational relationship test is used when the legislation involves economic
issues. In such cases, the legislation is "presumed valid and the party attacking the
legislation [has] the burden of showing that it is unconstitutional." (County of Los
Angeles v. Patrick, supra, 11 Cal.App.4th at p. 1252.)
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Hypolite v. Carleson, supra, 32 Cal.App.3d 979 is instructive. There, the court found
unconstitutional a regulation depriving AFDC to a child who did not reside with his
parents, but whose parents lived together. *fn9
The court explained, "[T]he AFDC program must be measured by federal standards. . . .
Congress intended to provide programs for the economic security and protection of all
children and [] it did not arbitrarily intend to leave one class of destitute children
entirely without meaningful protection." (Id. at p. 984.) It concluded, "[T]he
Regulation, insofar as it draws distinctions of eligibility based solely upon whether or
not the parents who have abandoned children reside together, creates a classification
which violates the equal protection clause of the Fourteenth Amendment." (Id. at p.
986.)
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Likewise, in Jacobson v. Department of Public Aid (1996) 171 Ill.2d 314 [664 N.E.2d
1024], the Illinois Supreme Court found a statute unconstitutional because it imposed
financial responsibility on parents whose 18- to 20-year-old children resided with them,
but exempted parents from liability if their children lived elsewhere. The court concluded
there was no rational basis for the distinction.
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Vincent v. State of California (1971) 22 Cal.App.3d 566, 573, is also helpful. The
Vincent court found Welfare and Institutions Code section 13700 void insofar as it
prohibited attendant care payments to a wife whose husband received Aid to the Totally
Disabled. It noted although there was "no requirement that the state provide aid to
the aged, blind or needy disabled, once it undertakes to do so the state may not
`invidiously discriminate' between persons similarly situated." (Ibid.; see also Lee
v. Smith (1977) 43 N.Y.2d 453 [373 N.E.2d 247].)
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We are mindful of other cases, decided by California and out-of-state courts,
upholding the constitutionality of seemingly similar child support
statutes. But, as we explain, they are clearly distinguishable.
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The courts in City and County of San Francisco v. Thompson (1985) 172 Cal.App.3d 652,
County of Los Angeles v. Patrick, supra, 11 Cal.App.4th 1246, and Sigler v. Sigler
(Wash.App. 1997) 932 P.2d 710, considered classifications consisting of non-custodial
payor parents who paid support for AFDC recipients and non-custodial payor parents whose
children did not receive AFDC. *fn10 Moreover,
the deductions in question related to expenses for children for whom child support
was being determined. Finally, the courts addressed the constitutionality of placing a
greater burden on parents whose children received AFDC rather than of those who did not.
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The classifications we consider consist of parents who support children other than
those receiving AFDC. The deduction relates to expenses for those other children and not
to the children for whom support is being determined. The issue we address is the
constitutionality of the resulting burden on those other children. These distinctions make
the difference. It is one thing to find constitutional a statute which differentiates
between non-custodial parents whose children receive AFDC benefits and non-custodial
parents whose children do not receive such benefits. (Ohio v. Baron (1997) 52 Cal.App.4th
62.) It is something else to uphold a statute which discriminates against siblings of the
AFDC recipients by placing the burden on them. The county has failed to suggest, and we
have not found, a rational basis or purpose for this classification. Accordingly, we
conclude section 4071.5 is unconstitutional to the extent it deprives a trial court of
discretion to consider a parent's expenses for children in his or her custody. *fn11
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There is one additional issue we need to address. We have concluded the trial court
does have discretion to make a maximum hardship deduction for children residing with the
payor parent, even when the payor's non-custodial children receive AFDC. However, as with
all judicial discretion, it must be exercised within certain confines. In cases such as we
now consider, i.e., where the payor supports AFDC and non-AFDC children, the court must
take into account both classes as well as the public's AFDC reimbursement rights.
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The matter is remanded to the trial court with directions to reconsider the child
support order in light of the discretion available under section 4059,
subdivision (g) and section 4071, subdivision (a)(2). Ivansco shall recover
his costs on appeal.
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SONENSHINE, J.
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WE CONCUR:
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WALLIN, ACTING P.J.
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RYLAARSDAM, J.
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Opinion Footnotes |
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*fn1 Unless otherwise specified, all further
statutory references are to the Family Code.
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*fn2 Ivansco concedes he did
not raise the statute's constitutionality below. However, "courts have several times
examined constitutional issues raised for the first time on appeal, especially when . . .
the asserted error fundamentally affects the validity of the judgment . . . or important
issues of public policy are at issue . . . ." (Hale v. Morgan (1978) 22 Cal.3d 388,
394.) Such is the case here.
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*fn3 Pursuant to section 4071, subdivision
(b) the deduction is limited to the support allocated to one twin, i.e., one- half of
$975, or $487.50. In any event, the result could have been an order for a lower amount of
support.
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*fn4 Ivansco also cites section
4053, which delineates the public policy underlying the child support
guidelines. "In implementing the statewide uniform guideline, the courts shall adhere
to the following principles: "(a) A parent's first and principal obligation is to
support his or her minor children according to the parent's circumstances and station in
life. ". . . . . . . . . . . . . . . . . . . . . . . . . . . "(e) The guideline
seeks to place the interests of children as the state's top priority. ". . . . . . .
. . . . . . . . . . . . . . . . . . . . "(i) It is presumed that a parent having
primary physical responsibility for the children contributes a significant portion of
available resources for the support of the children."
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*fn5 The County argues if Loura were earning
$753 a month rather than receiving AFDC, the court would have discretion to disallow some
or all of the teenager's expenses and Ivansco would be responsible for some
portion of Loara's child care expenses incurred as a result of her employment. (§§ 4061
& 4062.) Moreover, it explains if Ivansco were paying child
support for the teenager, his income taxes would increase because he would
no longer qualify as head of household and perhaps would not be entitled to claim the
teenager as a dependent. Finally, the county alleges Ivansco would not be
entitled to the hardship deduction if the teenager lived in a foster home.
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*fn6 In the legislative history of Senate
Bill No. 35, there is only one specific reference to the matter we address. Senate Bill
No. 35, as amended June 23, 1993, by the Senate Rules Committee states, in part:
"This bill makes changes to Medi- Cal and other health programs and to social
services programs including Aid to Families with Dependent Children (AFDC), Greater
Avenues for Independence (GAIN), Food Stamps, Supplemental Security Income/State
Supplementary Program (SSI/SSP), and county administration of those programs to support
the budget bill. Specifically, the bill: ". . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . ". . . Prevents a parent from claiming a child
support hardship deduction when a child of that parent is receiving AFDC.
Unknown General Fund savings."
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*fn7 Other documents in the legislative
history confirm this goal. (1) An April 29, 1992, memorandum to the bill's author
indicates no hardship deduction for "additional children born to or adopted by the
parent." (Memorandum to Sen. Mike Thompson from Sara McCarthy regarding Amendments to
Sen. Bill No. 1834.) (2) The memorandum further stated the bill's purpose is to
"[p]rovide that if a parent's children are receiving AFDC, he or she is prohibited
from claiming a hardship deduction which would reduce that parent's child support
payments, when the hardship is based on the existence of additional children born to or
adopted by the parent." (Ibid.) (3) A proposal by the Senate Democrats states,
"Hardship Deduction: Disallow `hardship deduction' for fathers with children
receiving AFDC. This deduction now allows non- custodial parents a deduction in child
support to children of a first relationship, based on support obligations to
children of a second relationship." (Assem. Com. on Human Services, Aug. 4, 1992
Republican Analysis of Sen. Democrats' Welfare Reform Proposal, Sen. Bill No. 1834 (1992-
1993 Reg. Sess.).) (4) A March 30, 1992, memorandum to the Members of the Senate
Democratic Caucus from Chairperson Diane E. Watson with a "Preliminary Analysis of
Welfare Proposal" indicates, "This concept of a maximum family grant is
predicated on the notion that an AFDC family has a `social contract' with government to
aid only those children in the family at the time aid is approved. Any adult who behaves
`irresponsibly' after that time and has additional children has violated the contract, and
the state is not obligated to pay aid for these children." (5) "Cap Maximum
Family Grant. Cap the maximum family grant to exclude any children born 9 months after the
family has been on aid. Note: the child support disregard will
be increased to allow child support payments to make up the
difference. (Savings: $16 million GF; $34 million total funds.)" (Assem. Com. on
Human Services, Aug. 4, 1992 Republican Analysis of Sen. Democrats' Welfare Reform
Proposal, Sen. Bill No. 1834 (1992- 1993 Reg. Sess.).)
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*fn8 The County pays Loura aid for herself
and four children. But for Ivansco's child support
order, her total AFDC entitlement would be $723. However, pursuant to Welfare and
Institutions Code section 11450, the difference between the child support
award and the AFDC allotment for the twins is subtracted from her total entitlement.
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*fn9 Specifically, the court found
unconstitutional Regulation 41-450.12 of the State Department of Social Welfare
Eligibility and Assistance Standards.
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*fn10 In City and County of San Francisco
v. Thompson, supra, 172 Cal.App.3d 652, a non-custodial parent of an AFDC child argued it
was unconstitutional to hold him responsible for AFDC payments made prior to the issuance
of a child support order when non-custodial parents were
retroactively liable for child support from only the time of
filing of the support request. The court saw no problem. "[T]he Legislature intended
recoupment of benefit payments to alleviate the burden on taxpayers and to ensure that as
the number of needy children rose, benefits to each child would not be reduced." (Id.
at p. 658.) "In seeking recoupment of AFDC benefits from non-custodial parents with
the ability to pay[,] the state is acting to enforce parental support duty and to recover
welfare money it has spent because the non-custodial parent has not met that support
duty." (Id. at p. 659.) The Sigler court came to this same Conclusion. It concluded,
"Since the taxpayers financially support children receiving AFDC rather than the
non-custodial parents, reasonable grounds exist for Washington's Legislature to
distinguish between non-custodial parents whose children receive AFDC from those whose
children do not. Thus, the Legislature had a reasonable basis to create the
classification. The classification is not arbitrary, unreasonable, inequitable or
unjust." (Sigler v. Sigler, supra, 932 P.2d at p. 714.) In County of Los Angeles v.
Patrick, supra, 11 Cal.App.4th 1246, a child support paying
father argued former Civil Code section 4727, subdivision (a) was unconstitutional because
it prohibited visitation credit for an AFDC recipient. The court upheld the statute
concluding, "[T]here is a legitimate purpose for distinguishing between non-custodial
parents of AFDC children and non-custodial parents generally in allowing a reduction in
support based upon visitation." (Id. at p. 1254.)
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*fn11 The significance of the trial court's
lack of discretion should not be underestimated. In County of Lake v. Antoni (1993) 18
Cal.App.4th 1102, the county sought modification of a child support
order. The court found the presumptive guideline amount $494, but reduced it to $294 after
considering the father's support of two step-children living with him and his high monthly
debt payments. The Court of Appeal affirmed. The panel acknowledged the cited factors did
not qualify for a hardship deduction but noted section 4057 (former Civ. Code, § 4721,
subd. (e)(6)) "effectively vests trial courts with considerable discretion to
approach unique cases on an ad hoc basis." (Id. at pp. 1105- 1106.)
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