Moreno v. DraperMoreno v. Draper
- Reporters:
- , , , ,
- Before:
- Wiseman
J.For purposes of calculating child support, a noncustodial parent is ineligible for a hardship deduction or any other deduction if he or she has a child receiving public assistance.
(County of Stanislaus
v.
Gibbs
(1997) 59 Cal.App.4th 1417 [69 Cal.Rptr.2d 819];
Procedural History
On February 11, 1997, the Stanislaus County District Attorney, Family Support Division, filed a notice of motion to modify a child support order. The existing order was filed on August 5, 1991, and ordered Edgar Ray Draper, Jr. (Draper) to pay $196 per month on behalf of his son, Charles.
A hearing occurred on March 25, 1997, where the court calculated the guideline child support at $452 per month. The court, however, deviated from the guideline amount, and ordered child support in the amount of $275 per month.
Lisa Ann Moreno (Moreno) now appeals contending: (1) the court erred in deviating from the guideline amount based on a hardship deduction, which is explicitly prohibited; (2) in the alternative, if the court deviated from the guideline amount pursuant to a “special circumstances” deduction under Family Code section 4057, subdivision (b)(5), 1 that this discretion was unavailable because Charles was receiving public assistance; and (3) the court erred in imputing income to Moreno in its support calculation.
Factual History
On December 24, 1996, Draper filed an income and expense declaration with the family support division. Draper’s declaration indicated he had a wife who did not work outside the home, and three children ages five, two, and nine months. It further declared that Draper had a monthly gross income average of $2,925.34 over the past 12 months, gross income of $2,436.01 over the
At the March 25, 1997, hearing Draper provided his most recent pay stub indicating his monthly gross income was $2,732. Draper’s counsel indicated Draper made $14.50 an hour in the construction field, and while he was eligible for overtime when such work is available, three employees at the same level as Draper had just been laid off that week. The district attorney submitted a wage verification showing Draper’s average monthly gross income for 1996 was $3,044.
The district attorney also provided information regarding Moreno’s earning capacity. According to the district attorney, Moreno had gone through the GAIN (Greater Avenues for Independence) program as a cook’s helper. She then worked for a period of three days at a salary of $5 an hour, but left that employment because she could not afford child care for her other two children.
Draper’s attorney admitted to the court that he was unable to seek a hardship deduction under
The court determined Draper’s income to be $2,732 per month based on his most recent paycheck. Draper was also given a $77 monthly credit for health insurance payments. The court then imputed to Moreno an earning capacity of $500 per month. After deciding on these numbers, the court calculated Draper’s presumed child support to be $452 per month.
The court, however, chose to deviate from the presumed amount based on: 1) the fact the previous support order had not been modified since 1991; 2) Draper and Moreno had both chosen to have additional children; and 3) because Draper’s current expenses were reasonable, it was in the best interests of all the children for support to be in the amount of $275 per month.
Discussion
I. Introduction *
II.
Constitutionality of
We return to Moreno’s claim that the trial court erred in granting Draper a hardship deduction under
At the hearing, Draper conceded he was not eligible for a hardship deduction. Instead, Draper argued the deduction granted by the court was not a hardship deduction, but rather a special circumstances deduction under section 4057, subdivision (b)(5). 2 Moreno counters by relying on our holding in County of Stanislaus v. Gibbs, supra, 59 Cal.App.4th 1417, where we held it was error to grant Gibbs a hardship deduction, since his noncustodial child was receiving public assistance. (Id. at p. 1426.)
But for a recent appellate case,
County of Orange
v.
Ivansco, supra,
67 Cal.App.4th 328, we would agree with Moreno, and our analysis would end here. As previously mentioned,
Gibbs
held that where a child was receiving public assistance, the noncustodial parent was statutorily precluded from claiming a hardship deduction “or any other deduction.”
(County of Stanis-laus
v.
Gibbs, supra,
59 Cal.App.4th at p. 1426.) In
Ivansco,
however, the court addressed a novel issue regarding
In Ivansco, the court set child support in the amount of $512 per month commencing May 15, 1992, on behalf of twins Jaime and Alexander. In 1995, the county filed an order to show cause seeking to increase the amount of the existing order. The mother of the twins was receiving public assistance on their behalf. At the time of the filing, however, Ivansco’s 14-year-old son from a prior marriage was now living with him, and because the mother paid no support, Ivansco was the teenager’s sole provider. After a hearing, the court ordered child support in the amount of $975 monthly on behalf of the twins. (67 Cal.App.4th at p. 331.)
On appeal, Ivansco argued that
Although
Ivansco
was decided after the briefing in this case, in light of its holding, we raised the issue with the parties, requested supplemental briefing, and now proceed with our own analysis of the constitutionality of
A. The equal protection clause
We begin with a discussion of the equal protection clause of the Fourteenth Amendment, which has been interpreted by the United States Supreme Court to mean “that all persons similarly circumstanced shall be treated alike.” (F.S. Royster Guano Co. v. Commonwealth of Virginia (1920) 253 U.S. 412, 415 [40 S.Ct. 560, 562, 64 L.Ed. 989].) As clearly articulated by Justice White in Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432 [105 S.Ct. 3249, 87 L.Ed.2d 313]:
“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike. [Citation.] Section 5 of the Amendment empowers Congress to enforce this mandate, but absent controlling congressional direction, the courts have themselves devised standards for determining the validity of state legislation or other official action that is challenged as denying equal protection. The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. [Citations.] When social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude, . . . and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes.
“The general rule gives way, however, when a statute classifies by race, alienage, or national origin. These factors are so seldom relevant to the
achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy — a view that those in the burdened
Thus, in order for the equal protection clause to even be applicable, we first determine whether
B. Level of scrutiny to be applied
1.
Classifications drawn by
Here, we agree with
Ivansco
that
Although
Ivansco
correctly identified two classes of parents created by
In
Lyng
v.
Castillo
(1986) 477 U.S. 635, 638 [106 S.Ct. 2727, 2729, 91 L.Ed.2d 527], a case involving the federal food stamp program (
Therefore, whether the classes here are identified as classes of parents, or whether a court focuses on any burden which may shift to custodial children, the end result is the same. Since neither is a suspect or quasi-suspect class, the rational basis standard is the appropriate test to be used based on the classifications created by
2. Right at issue
However, in what we view as the fulcrum for our analysis, we do not agree with Ivansco that section 4071.5 infringes on the fundamental right identified thus requiring a strict scrutiny analysis. In Ivansco, the county argued Ivansco’s fundamental right was not “invidiously compromised” by section 4071.5, contending that Ivansco was no worse off financially than if his twins were not on AFDC. The court noted in response to the county’s financial argument, however, that “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.” (County of Orange v. Ivansco, supra, 67 Cal.App.4th at p. 334.) Without further analysis regarding whether section 4071.5 actually infringed on Ivansco’s fundamental right, the court proceeded to apply the strict scrutiny standard.
Ivansco apparently determined the noncustodial parent’s fundamental right to raise his own custodial children in his own home was compromised based on a change in the amount of child support being paid to the noncustodial child. The court reasoned that by increasing the guideline child support to the noncustodial child without discretion to consider the current custodial children, section 4071.5 lowered the amount of income available to support the custodial children. Thus, the noncustodial parent’s fundamental right was affected which resulted in application of the strict scrutiny standard. In our view, the logic and conclusion reached by Ivansco do not comport with existing law.
In Regan v. Taxation with Representation of Wash. (1983) 461 U.S. 540, 549-550 [103 S.Ct. 1997, 2002-2003, 76 L.Ed.2d 129], the United States Supreme Court indicated:
“We have held in several contexts that a legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny.
Buckley
v.
Valeo
424 U.S. 1 [96 S.Ct.
612, 46 L.Ed.2d 659] (1976), upheld a statute that provides federal funds for candidates for public office who enter primary campaigns, but does not provide funds for candidates who do not run in party primaries. We rejected First Amendment and equal protection challenges to this provision without applying strict scrutiny.
Id.,
at 93-108 [96 S.Ct. at pp. 670-677].
Harris
v.
“The reasoning of these decisions is simple: ‘although government may not place obstacles in the path of a [person’s] exercise of . . . freedom of [speech], it need not remove those not of its own creation.’ [Citation.]”
Here, Draper made the voluntary choice to remarry and have three additional children in a one-income household. There was no guarantee made to Draper that the amount of child support he paid on behalf of Charles would remain constant ad infinitum. Section 4071.5 is not, in our opinion, placing any obstacles in the path of Draper’s right to raise his own family in his own home. The factors Draper sought to use to reduce the presumed amount of child support — that he was remarried with three new children, were those of his own creation. California taxpayers are not required to subsidize his fundamental right by granting him any type of deduction from the guideline child support amount when one of his children is receiving public assistance.
We are not oblivious to Draper’s plight or that of his new family, but our job is to apply the law as it was intended to the facts of the cases before us. Here, the law is clear that section 4071.5 should not be subject to a strict scrutiny analysis.
C. Rational basis analysis
The question we now must answer is whether section 4071.5 is rationally related to a legitimate state interest. Section 4071.5 passes this test.
The court in Ivansco reviewed the legislative history of section 4071.5 and concluded that the “legislative history does not shed much light on its intent,” (County of Orange v. Ivansco, supra, 67 Cal.App.4th at p. 334, fn. omitted.) However, Ivansco acknowledges that a review of similar legislation makes its goal “crystal clear.” That statute “proposed ‘to discourage growth of family size while on AFDC by not paying for any additional children bom 10 months after the family has been on AFDC ... or for any additional child conceived while either parent is receiving AFDC . . . .’ [Citation.]” (Id. at pp. 334-335, fn. omitted.)
The state’s interest can be distilled to the following; how to allot the limited amount of funds it has available for distribution to families who qualify for AFDC. Further, the allocation of public funds has previously been recognized as a legitimate interest of the state. (See Dandridge v. Williams (1970) 397 U.S. 471, 487 [90 S.Ct. 1153, 1162-1163, 25 L.Ed.2d 491]; Valot v. Southeast Local School Dist. Bd. of Educ. (6th Cir. 1997) 107 F.3d 1220, 1227 [“Defendants’ interest in protecting the public fisc is not only legitimate, but also laudable.”].) Thus, the only remaining question is whether section 4071.5 is rationally related to a legitimate interest of the state. In our opinion, it clearly meets this standard.
Ivansco concluded, “[t]he county has failed to suggest, and we have not found, a rational basis or purpose for this classification.” (County of Orange v. Ivansco, supra, 67 Cal.App.4th at p. 338.) We respectfully disagree with Ivansco, and conclude there is a rational basis for the classifications created by section 4071.5.
In our view, requiring a noncustodial parent to take full responsibility for his or her calculated guideline share of support in raising a noncustodial child is rationally related to the allocation of limited public funds. It seems quite rational for a state legislature to decide on behalf of its taxpayers that it will not allow for a deduction in the guideline support amount on behalf of a noncustodial parent who, while claiming he or she cannot afford to pay the full amount of support for a child or children, has voluntarily chosen to support additional custodial children. This is not to say we cannot understand why a person may want to start a new life and have a new family where a prior relationship has broken down. But we believe it is rational
As recognized by the United States Supreme Court in Dandridge, “. . . the intractable economic, social, and even philosophical problems presented by the public welfare assistance programs are not the business of this Court. . . . [T]he Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating public welfare funds among the myriad of potential recipients.” (Dandridge v. Williams, supra, 397 U.S. at p. 487 [90 S.Ct. at p. 1163].)
In conclusion, we find that section 4071.5 is constitutional as applied to noncustodial parents supporting both custodial and noncustodial children, even where the trial court has no discretion to grant the noncustodial parent a deduction. 4 Therefore, as we held in Gibbs, the trial court here did not have the discretion to grant Draper a hardship deduction or any other deduction from the presumed guideline support amount.
III. Imputing income to Moreno *
Disposition
This matter is remanded for the trial court to redetermine Draper’s child support in conformity with the guideline amounts. Each party shall pay its own costs on appeal.
Dibiaso, Acting P. J., and Harris, J., concurred.
Notes
All further statutory references are to the Family Code.
See footnote, ante, page 886.
Draper contended that if section 4071.5 did not allow for a hardship deduction, the trial court was still allowed to use its discretion to grant a special circumstance deduction under section 4057. Even had we found this to be the case, we would still find a special circumstance deduction inappropriate.
The only special circumstance here is that Draper now has a new family. There is no evidence of any consumer debt directly related to living expenses, as in County of Lake v. Antoni (1993) 18 Cal.App.4th 1102 [22 Cal.Rptr.2d 804], nor is there any evidence relating to the three special circumstances noted in section 4057. Although the statute indicates the list is not exhaustive, if merely having a new family and the costs associated with supporting that new family without more were considered a special circumstance, it would circumvent the purpose of section 4071.5 and render it meaningless.
Under intermediate scrutiny, “the party seeking to uphold a statute . . . must carry the burden of showing an ‘exceedingly persuasive justification’ for the classification. [Citations.] The burden is met only by showing at least that the classification serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.’ [Citation.]” (Mississippi University for Women v. Hogan (1982) 458 U.S. 718, 724 [102 S.Ct. 3331, 3336, 73 L.Ed.2d 1090].)
We observe that on March 12, 1999, the First District filed City and County of San Francisco v. Garnett (1999) 70 Cal.App.4th 845 [82 Cal.Rptr.2d 924], which reaches the same result.
See footnote, ante, page 886.