Moreno v. Draper

Opinion

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 ]; Fam. Code, § 4071.5.) In County of Orange v. Ivansco (1998) 67 Cal.App.4th 328 [ 78 Cal.Rptr.2d 886 ], the Fourth District, Division Three, held that Family Code section 4071.5 is unconstitutional. We respectfully disagree and hold that Family Code section 4071.5 is constitutional and does not violate the equal protection clause under the Fourteenth Amendment. We agree with Ivansco on two points: 1) section 4071.5 does create two classes of parents paying child support — those with children receiving public assistance and those with children not receiving public assistance; and 2) there is a fundamental right

On appeal, Ivansco argued that section 4071.5 was “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.” (County of Orange v. Ivansco, supra, 67 Cal.App.4th at p. 331, fn. omitted.) The appellate court agreed, and remanded with directions for the trial court to reconsider the child support order in light of the discretion now available to it. (Id. at p. 338.)

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 section 4071.5.

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

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 ( 7 U.S.C. §2011 et seq.), the United States Supreme Court held that a statutory requirement generally treating parents, children, and siblings who lived together as a single household did not violate the equal protection guarantee in the due process clause of the Fifth Amendment. In determining the level of scrutiny to be applied based upon the classifications created, the court said: “The disadvantaged class is that comprised by parents, children, and siblings. Close relatives are not a ‘suspect’ or ‘quasi-suspect’ class. As a historical matter, they have not been subjected to discrimination; they do not exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group; and they are not a minority or politically powerless. See, e.g., Massachusetts Board of Retirement v. Murgia (1976) 427 U.S. 307 , 313-314 [ 96 S.Ct. 2562 , 2566-2567, 49 L.Ed.2d 520 ] (per curiam). In fact, quite the contrary is true.” (Lyng v. Castillo, supra, 477 U.S. at p. 638 [106 S.Ct. at p. 2729].)

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 section 4071.5.

2. Right at issue

Section 4071.5 affects parents who, in addition to having a noncustodial child receiving aid payments, are also currently raising other custodial

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.

“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

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 for a state to protect its limited fiscal resources by not allowing noncustodial parents to jump from family to family at the expense of ignoring the responsibilities they have incurred with their prior families.

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,