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.
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.
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.
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.
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. See footnote 2 As we will now explain, we agree.
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).
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.
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 noncustodial children who receive AFDC, while others support noncustodial 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.
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.
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.
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.See footnote 8 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 noncustodial 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.
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.
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.
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 noncustodial payor parents who paid support for AFDC recipients and noncustodial payor parents whose children did not receive AFDC. See footnote 10 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.
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 noncustodial 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.
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.
Footnote: 1 Unless otherwise specified, all further statutory references are to the Family Code.
Footnote: 2 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.
Footnote: 3 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.
"(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."
Footnote: 5 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.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
". . . Prevents a parent from claiming a child support hardship deduction when a child of that parent is receiving AFDC. Unknown General Fund savings."
Footnote: 8 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.
Footnote: 9 Specifically, the court found unconstitutional Regulation 41-450.12 of the State Department of Social Welfare Eligibility and Assistance Standards.