Marriage of Gilbert

• Decision Date: 13 October 1997
• Docket Number: No. 38233-1-I,38233-1-I
• Citation: 945 P.2d 238,88 Wn.App. 362
• Parties: In re the MARRIAGE OF Karen E. GILBERT, n/k/a Karen E. Yeager, Respondent, and David A. Gilbert, Appellant.
• Court: Washington Court of Appeals

Page 362

88 Wn.App. 362

945 P.2d 238

In re the MARRIAGE OF Karen E. GILBERT, n/k/a Karen E. Yeager, Respondent and David A. Gilbert, Appellant.

No. 38233-1-I.

Court of Appeals of Washington,

Division 1.

Oct. 13, 1997.

David A. Gilbert, Shoreline, Pro se.

Karen E. Yeager, Greenbank, Pro se.

Lawrence Scott Lockwood, Lianne S. Malloy, Office of the Attorney General, Olympia, Asst. Atty. General, Lacey, Amicus Curiae on behalf of State of Washington S.H.S James D. Cleary, Thomas E. Ashton III, Columbia Legal Service, Everett, Amicus Curiae, on behalf of Puget Sound Legal Foundation.

KENNEDY, Acting Chief Judge.

David Gilbert appeals an order entered under RCW 26.19.065 requiring him to pay child support at the statutory minimum amount of $25 per child per month. He contends that because federal law prohibits states from enacting child support schedules that permit no rebuttal of the amount awarded, the provision of RCW 26.19.065(2) mandating a minimum support obligation of $25 per child per month violates federal law and is thus invalid under the Supremacy Clause. We agree. We also conclude that Mr. Gilbert has standing to enforce the applicable federal law; accordingly, we reverse the child support order entered in this case. On remand, Mr. Gilbert shall be given the opportunity to show, if he can, that $25 per child per month is unjust or inappropriate in his particular circumstances. We also hold that until such time as the Legislature may amend Ch. 26.19 RCW to comply with the applicable federal law, Washington courts are required by the Supremacy Clause to treat the mandatory presumption contained in RCW 26.19.065(2) and parallel statutes as if it were a rebuttable presumption, notwithstanding the mandatory language now contained in said statutes.

I

On August 3, 1993, a commissioner of the Snohomish County Superior Court entered an order under RCW 26.19.065 requiring David Gilbert to pay child support at the statutory minimum amount of $25 per child per month. Gilbert, who is incarcerated at the Washington State Correction Center in Shelton, moved to revise the support order, claiming that the support obligation exceeded his monthly income. Citing N.R., Shirlee Arrington, Angela Lloyd, Rex Albertson and Susan Albertson, on behalf of themselves and all others similarly situated, v. Jean Soliz, Secretary, Washington State Department of Social and Health Services, Docket No. 93-5338B (W.D.Wa.1994) (Soliz), Gilbert argued that, in cases such as his, Washington's child support schedule violates federal law and is preempted by the Supremacy Clause.

On January 12, 1996, the Superior Court affirmed the commissioner's support order, concluding:

The United States District Court case on which [Gilbert] bases his motion, N.R. v. Soliz, is not applicable to [Gilbert's] case. That ruling affects only administratively established child support obligations. In the present case, child support was set and later modified down to its present level pursuant to superior court orders in a dissolution action.

Clerk's Papers at 6 (emphasis in original). Gilbert filed a timely notice of appeal.

The respondent has failed to file a brief in this case. Although Washington courts formerly limited review in such cases to whether the appellant's brief made a prima facie showing of reversible error, see Hobart Corp. v. North Cent. Credit Servs., Inc., 29 Wash.App. 302, 303, 628 P.2d 842 (1981), our Supreme Court recently rejected the lowered standard of review, stating:

A respondent who elects not to file a brief allows his or her opponent to put unanswered arguments before the court, and the court is entitled to make its decision based on the argument and record before it. The court, however, should not confine itself to whether the appellant has presented a prima facie case when the record and their own knowledge of the law permit a fuller review. Under the RAPs, there is no longer a basis for differing standards of review. Even more importantly, the prima facie case rule has the potential for producing an unjust result. The quantity or quality of briefing should not affect the standard of review used by the court.

Adams v. Department of Labor & Indus., 128 Wash.2d 224, 229, 905 P.2d 1220 (1995).

Soliz is an unpublished summary judgment ruling by Judge Robert J. Bryan of the United States District Court, Western District of Washington, in a class action suit in which the class was designated as "[a]ll parents in Washington with less than $600 available monthly income who, since September 1, 1991, have been or will be assessed a child support obligation by the Office of Support Enforcement [now Support Enforcement Division] of $25 per month per child" based on RCW 26.19.065(2) and RCW 26.19.020. See Order Certifying Class Action entered October 19, 1993, Soliz, supra. On February 4, 1994, Judge Bryan ruled:

(1) RCW 26.19.065(2) and parallel state statutes and regulations that impose an irrebuttable child support obligation of not less than $25.00 per child per month on parents with less than $600.00 available monthly income are declared to be in conflict with and in violation of 42 U.S.C. sec. 667(b)(2) and 45 C.F.R. sec. 302.56(f) and (g);

(2) Defendant Jean Soliz and her successors in office, agents, employees, and persons acting in concert with them are enjoined from assessing and enforcing child support obligations in a manner inconsistent with 42 U.S.C. sec. 667(b)(2) and 45 C.F.R. sec. 302.56(f) and (g).

Order Granting Plaintiffs' Motion for Partial Summary Judgment, Soliz, supra.

Because only administrative support orders and not judicial support orders were before Judge Bryan, he limited his ruling to administrative support proceedings, commenting that Washington courts would have to decide for themselves how to proceed when faced with the Supremacy Clause issue in judicial child support proceedings. See Transcript of Judge's Oral Decision Before the Honorable Robert J. Bryan, United States District Court Judge, February 4, 1994, Soliz, supra. On May 26, 1994, Judge Bryan entered Declaratory Judgment and Permanent Injunction consistent with the ruling on summary judgment, enjoining Secretary Soliz and her successors in office, agents and employees from assessing child support obligations in a manner inconsistent with federal laws governing states (such as Washington) that receive federal matching funds under the Social Security Act Title IV-D (support enforcement) program.

The Department of Social and Health Services did not appeal Judge Bryan's ruling and, in May 1994, amended WAC 388-11-205(10) to comply with the ruling. Whereas the regulation had previously mirrored RCW 26.19.065(2) mandating that no child support obligation be less than $25 per child per month in any circumstance, the amended regulation expressly authorizes the consideration of a downward deviation from the presumptive $25 per month per child minimum support obligation. See WAC 388-110205(10), pre- and post-1994 versions.

In 1995, Senator Smith sponsored Senate Bill 5473 which would have amended Ch. 26.19 RCW to make it consistent with Judge Bryan's ruling in Soliz, in all judicial and administrative child support proceedings. The bill was introduced at both the 1995 and 1996 legislative sessions, and passed in the Senate but not in the House of Representatives. Thus, as of the date of this opinion, child support orders entered in the administrative forum are required to comply with federal law but child support orders entered in the judicial forum are still governed by the mandatory presumption contained in RCW 26.19.065.

Soliz, as an unpublished opinion, lacks precedential value and, as the trial court correctly perceived, Mr. Gilbert, who is not a member of the certified class, is not entitled to direct relief under Soliz. Accordingly, he must challenge the mandatory presumption anew.

Because of the importance of the constitutional issue raised by Mr. Gilbert, and because Gilbert, who briefed this appeal without the assistance of legal counsel, relies entirely on an unpublished decision which lacks precedential value, this court requested amicus briefing from the Attorney General's Office on behalf of the Department of Social and Health Services (State) and from Columbia Legal Services (the successor of Puget Sound Legal Services, which represented the plaintiffs in Soliz). Specifically, the court asked the State whether or not Judge Bryan's Supremacy Clause analysis (which we found to be highly persuasive) is equally applicable in judicial child support proceedings and whether any policy considerations would justify not extending the ruling in Soliz to the judicial forum. After the State questioned Mr. Gilbert's standing to enforce federal law regulating state child support proceedings under the Supremacy Clause, the court asked Columbia Legal Services to respond to that issue. We take this opportunity to thank the Attorney General's Office and Columbia Legal Services for their respective amicus briefs, which have been of great assistance to the court in deciding this appeal.

II

Under the Federal Child Support and Establishment of Paternity Act, participating states are required to adopt state-wide guidelines with respect to child support awards as a condition of receiving federal funds. 42 U.S.C. sec. 667(b)(2) provides:

There shall be a rebuttable presumption, in any judicial or administrative proceeding for the award of child support, that the amount of the award which would result from the application of such guidelines is the correct amount of child support to be awarded. A written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case, as determined under criteria established by the State, shall be sufficient to rebut the presumption in that case.

42 U.S.C. sec. 667(b)(2) (emphasis added). See also 45 C.F.R. sec. 302.56(f) ("Effective...