Marriage of Hyon & Kirschner, In re

• Court: California Court of Appeals
• Writing for the Court: YEGAN; STEVEN J. STONE, P.J., and GILBERT
• Citation: Marriage of Hyon & Kirschner, In re, 282 Cal.Rptr. 408, 231 Cal.App.3d 449 (Cal. App. 1991)
• Decision Date: 20 June 1991
• Parties: In re the MARRIAGE OF Hu HYON and Andrew KIRSCHNER. COUNTY OF SAN LUIS OBISPO, Petitioner and Appellant, v. Andrew KIRSCHNER, Respondent. Civ. B051961.

Page 408

282 Cal.Rptr. 408

231 Cal.App.3d 449

In re the MARRIAGE OF Hu HYON and Andrew KIRSCHNER COUNTY OF SAN LUIS OBISPO, Petitioner and Appellant, v. Andrew KIRSCHNER, Respondent.

Civ. B051961.

Court of Appeal, Second District, Division 6, California.

June 20, 1991.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Sr. Asst. Atty. Gen., Carol Wendelin Pollack, Supervising Deputy Atty. Gen., Elaine F. Tumonis, Deputy Atty. Gen., for petitioner and appellant.

Andrew Kirschner, in pro. per.

YEGAN, Associate Justice.

"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." (Civ.Code, § 4720, subd. (e); see also Civ.Code, § 196, subd. (a).) If the government supports a parent's child, the parent has to reimburse the government subject to the three-year statute of limitations and the parent's ability to pay.

County of San Luis Obispo (County) appeals from a judgment denying a $14,642.98 reimbursement claim for public assistance benefits, Aid to Families With Dependent Children (AFDC), furnished respondent's children by the state of Florida. County filed the interstate child support enforcement action pursuant to Welfare & Institutions Code section 11350 and the Revised Uniform Reciprocal Enforcement of Support Act (RURESA). (Code Civ.Proc., § 1650 et seq.)

County contends the trial court erred when it found the reimbursement claim was barred by a Florida dissolution judgment which reserved jurisdiction on child support but never set a support amount. We reverse because the trial court misconstrued the Florida dissolution judgment and failed to apply California law.

On November 22, 1978, respondent obtained a Florida dissolution following a three-year marriage. Two children were born during the marriage and placed in foster care by the Juvenile and Domestic Relations Division of the Florida Circuit Court. The "Final Judgment of Dissolution of Marriage" awarded wife $100 per month spousal support for 48 months and "... reserve[d] continuing jurisdiction over the parties of this cause and the minor children, pending further action of the Juvenile and Domestic Relations Division." No child support orders were made because the children were still in foster care. ¹

Respondent moved to San Luis Obispo County and became employed as a correctional officer at the California Men's Colony. His ex-wife and two children remained in Florida. From 1982 to 1989, the Florida Department of Health and Rehabilitative Services (HRS) provided respondent's children $16,460.98 in AFDC benefits. (42 U.S.C. § 651, et seq.) This arrearage was reduced to $14,642.98 following a 1986 intercept of respondent's federal income tax refund.

On May 4, 1989, Florida initiated a RURESA petition to collect $9,966.12 in accrued spousal support, obtain child support, and recoup $14,642.98 in AFDC benefits. California, acting as the "responding state," (Code Civ.Proc., § 1653(i)) brought a Welfare & Institutions Code section 11350 action to obtain the relief requested in the petition.

After a noticed hearing, the trial court ordered respondent to pay the spousal support arrearage and commence child support payments of $288 per month for each child. The AFDC reimbursement claim was denied. The trial court found the 1978 dissolution judgment constituted a support order for "zero dollars" pursuant to West's Florida Statutes Annotated, 1991 supplement, section 409.2561. ²

Code of Civil Procedure section 1670 provides: "Duties of support applicable under this title are those imposed under the laws of any state where the obligor was present for the period during which support is sought. The obligor is presumed to have been present in the responding state during the period for which support is sought until otherwise shown." (See also Scott v. Superior Court (1984) 156 Cal.App.3d 577, 584, 202 Cal.Rptr. 920.) Section 1670 is merely an enlargement of "... the remedies available to the obligee so that the obligee may more easily obtain support wherever the obligor is found or has been living." (In re Marriage of Taylor (1981) 122 Cal.App.3d 209, 215, 175 Cal.Rptr. 716.)

Absent a preexisting support order, respondent's liability for state-furnished support commenced with the payment of AFDC benefits. (City and County of San Francisco v. Thompson (1985) 172 Cal.App.3d 652, 659, 218 Cal.Rptr. 445.) There are two significant limitations on this liability. First, "[t]he three year statute of limitations period created by Code of Civil Procedure section 338, subdivision 1, applies to recoupment actions brought under [Welfare and Institutions Code] section 11350. [Citations.]" (Ibid., at p. 659, 218 Cal.Rptr. 445.) Second, liability is "... limited by such parent's reasonable ability to pay during that period in which aid was granted...." (Welf. & Inst.Code, § 11350, subd. (b); see also County of Santa Clara v. Farnese (1985) 183 Cal.App.3d 257, 263, 237 Cal.Rptr. 457.)

Appellant correctly argues that the trial court should have applied California law to determine the amount of the AFDC recoupment. Code of Civil Procedure section 1670 requires that the "responding state" in a RURESA action apply its own law. The court's reliance on Florida Statutes 1991 section 409.2561 was misguided but inconsequential since Florida's statute is analogous to Welfare & Institutes Code section 11350 which obligates noncustodial parents to pay "an amount specified for support in a court order, or ... in the absence of such a court order, for the amount of aid actually paid by the county, adjusted according to the reasonable ability of the parents to pay." (County of Santa Clara v. Farnese, supra, 183 Cal.App.3d at p. 263, 237 Cal.Rptr. 457.)

In an interstate RURESA action a California court should first determine whether respondent was subject to a preexisting support order. (See In re Marriage of Alper (1981) 116 Cal.App.3d 925, 928, 172 Cal.Rptr. 402.) Pursuant to the full faith and credit clause (U.S. Const., art. IV, § 1), "... California courts must recognize and enforce foreign alimony and support decrees whether modifiable or not...." (Worthley v. Worthley (1955) 44 Cal.2d 465, 472, 283 P.2d 19.)

We hold that a reservation of jurisdiction over child support is not the equivalent of a court order for zero child support. Had the Florida court made a determination that respondent pay no child support, based on lack of need or inability to pay, it would have said so. Under Florida law a " '[c]ourt order' means any judgment or order of any court of appropriate jurisdiction ... ordering payment of a set or determinable amount of support money." (West's Fla.Statutes Ann. (1991 Supp.) vol. 14B, pt. 2, § 409.2554(4), emphasis added.)

Florida courts customarily enter partial judgments dissolving the marriage only and bifurcate custody and child support issues. (Galbut v. Garfinkl (Fla.1976) 340 So.2d 470, 473-474; Klarish v. Klarish (Fla.1974) 296 So.2d 497, 498.) Because the children were still in foster care, the court simply dissolved respondent's marriage, awarded spousal support, and reserved jurisdiction on child support. Similar divisible dissolution procedures are utilized in California. (Civ.Code, § 4515; Gionis v. Superior Court (1988) 202 Cal.App.3d 786, 787, 248 Cal.Rptr. 741.)

. Respondent's contention that the RURESA recoupment claim constitutes an ex post facto modification of the judgment and deprives him of due process is without merit. No support order existed prior to the RURESA action. Reimbursement is...