Montell, Matter of

• Decision Date: 13 July 1989
• Docket Number: No. 11660-0-II,11660-0-II
• Citation: 54 Wn.App. 708,775 P.2d 976
• Court: Washington Court of Appeals
• Parties: In the Matter of VERNA J. MONTELL, et al. Verna J. MONTELL, et al., Appellants, v. The DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.

Page 708

54 Wn.App. 708

775 P.2d 976

In the Matter of VERNA J. MONTELL, et al.

Verna J. MONTELL, et al., Appellants, v. The DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.

No. 11660-0-II.

Court of Appeals of Washington,

Division 2.

July 13, 1989.

John S. Tracy, Tracy, McDaniel & Buchholz, Bremerton, for appellants.

Frances E. Holmes, Jacqueline B. Rosenblatt, Asst. Atty. Gen., Tacoma, for respondents.

ALEXANDER, Chief Judge.

Verna and James Montell, husband and wife, appeal the Kitsap County Superior Court's affirmance of a decision of the Department of Social and Health Services to the effect that James Montell was a "custodial stepparent" of Verna Montell's children and, thus, obligated for their financial support. We reverse.

Verna Montell is the natural mother of two children, Robert and Ronnie. The children were born of her marriage to Marion Arthur Fossum. That marriage was dissolved in 1972 and Verna was awarded custody of Robert and Ronnie, as well as two other children born of the marriage. In 1975, the dissolution decree was amended to give Fossum custody of Robert and Ronnie. The two children then began residing with him.

Verna married James Montell in 1978. In 1982, Robert and Ronnie went to live with the Montells because Fossum was sentenced to a term in prison. The two children remained with the Montells for the entire period of Fossum's incarceration, approximately 2 years. During that period, James Montell voluntarily provided financial support for Ronnie and Robert. When Fossum was released from prison, Robert and Ronnie returned to live with him.

In 1984, DSHS began paying public assistance (Aid to Dependent Children) to Fossum, on behalf of Robert and Ronnie. Shortly thereafter, DSHS's office of support enforcement served the Montells with a notice that they were both financially responsible for the support of Robert and Ronnie. The Montells appealed to the Department, claiming that James had no financial responsibility for the support of the children. The matter was initially heard by an administrative law judge who made extensive findings of fact. ¹ She concluded that James Montell was not a custodial stepparent and, thus, not liable for the support of the children. In this regard, the administrative law judge found:

The children went to live with their mother and Mr. Montell following the incarceration of their natural father. Mr. Montell was asked, and agreed to allow the children to live with him during this period. This arrangement occurred only because the children's natural father went to prison and lasted only for the period of his imprisonment. Following his release from prison, the children returned to live with their natural father ...

The children's stay with the Montells may be likened to a visit since it was for a definite period of time, temporarily in nature and for a specific purpose. The parties never intended for this arrangement to be permanent and Mr. Montell never intended to take on the responsibility of a custodial stepparent when he assumed this obligation.

The administrative law judge also concluded, for purposes of determining Verna Montell's support obligation for Robert and Ronnie, that only one-half of the Montells' community income and one-half of the community's interest in James Montell's military pension should be imputed to Verna Montell for purposes of determining the amount of her support contribution pursuant to WAC 388-11-190.

DSHS's office of support enforcement sought review of the administrative law judge's decision. The review judge adopted the Administrative Law Judge's findings, but concluded from those findings that James Montell was a "custodial stepparent" and, thus, individually liable for the support of Robert and Ronnie. In addition, the review judge concluded that the Montells' "net income," for purposes of determining their support obligation, included all of the marital community's income, not merely Verna Montell's one-half community interest. The Montells appealed the review judge's decision to the Kitsap County Superior Court, which affirmed. The Montells thereafter appealed to this court.

The review of decisions of state administrative agencies is governed by the Administrative Procedures Act, RCW 34.04. Judicial review of administrative decisions is on the record of the administrative tribunal itself, not the record made in the Superior Court. Franklin Cy. Sheriff's Office v. Sellers, 97 Wash.2d 317, 646 P.2d 113 (1982). Because the Montells do not assail the facts found by the administrative law judge and affirmed by the review judge, our review is under the error of law standard. RCW 34.04.130(6)(d). Under this standard, an appellate court may substitute its determination for that of the agency, although the agency's determination is entitled to substantial weight. Franklin Cy. Sheriff's Office v. Sellers, supra.

The primary issue on appeal is this: did the administrative agency err in concluding from the undisputed facts that James Montell was a "custodial stepparent" and, thus, chargeable with the support of Robert and Ronnie? If James Montell is not chargeable with the support of Robert and Ronnie, a secondary issue is presented: Is WAC 388-11-190 invalid to the extent it takes into consideration a non-custodial stepparent's community earnings in calculating an obligated parent's support liability?

1. Liability of Stepparent for Support of Stepchildren

Liability of stepparents for the support of their stepchildren is governed by RCW 26.16.205, which provides:

The expenses of the family and the education of the children, including stepchildren, are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately: Provided, That with regard to stepchildren, the obligation shall cease upon the termination of the relationship of husband and wife.

Notwithstanding the far-reaching language of the statute, our state Supreme Court has concluded that this statute imposes liability for support of stepchildren only upon "custodial stepparents." Van Dyke v. Thompson, 95 Wash.2d 726, 730, 630 P.2d 420 (1981). The court in Van Dyke concluded that RCW 26.16.205 did not effect a departure from the common law rule that only those stepparents standing "in loco parentis" to a stepchild are legally obligated to support and educate the child. Van Dyke, 95 Wash.2d at 729, 630 P.2d 420, citing Taylor v. Taylor, 58 Wash.2d 510, 512, 364 P.2d 444 (1961).

Under the common law rule, an "in loco parentis" relationship becomes established only when a stepparent intends to assume the status of a parent. State ex rel. Gilroy v. King Cy., 37 Wash.2d 926, 934, 226 P.2d 882 (1951); Taylor, 58 Wash.2d at 512, 364 P.2d 444. The mere taking of a stepchild into the home does not establish such a relationship unless the stepparent manifests an intent to assume the status of parent toward the child. See State v. Gillaspie, 8 Wash.App. 560, 507 P.2d 1223 (1973) (holding that the relationship of stepparent and stepchild confers no rights and imposes no duties upon either unless a child is taken into the home of the stepparentand the relationship of in loco parentis established).

The determination of whether an in loco parentis relationship is established, therefore, is a mixed question of law and fact, which turns primarily upon the factual determination of intent. As noted above, the facts in this case are not in dispute, and, consequently, our focus must be on the resolution of the legal issue from those facts.

In this regard, the finding of the ALJ, which was adopted by the review judge, was that James Montell never intended to have the boys reside with him permanently and that he never intended to take on the responsibility of a custodial stepparent when he assumed the obligation of caring for the boys while their father was incarcerated. Despite this finding of a lack of intent by James Montell to assume a custodial stepparent relationship, the review judge and superior court concluded that James Montell's financial support and assumption of physical custody of the boys for the two years during which Fossum was in prison was sufficient to establish an in loco parentis relationship on the part of James Montell. We disagree.

In our judgment, a conclusion that the common law relationship of in loco parentis is established merely by the assumption of support for a definite period of time, without consideration of the intent of the stepparent, is not only contrary to the established case law, but it is poor public policy. As noted above, it is contrary to the established case law, because it completely disregards the intent of the stepparent. See State ex rel. Gilroy v. King Cy., supra; Taylor v. Taylor, supra. It is poor public policy because stepparents, faced with circumstances similar to those confronting James Montell, would very likely be averse to bringing stepchildren into their home voluntarily if by doing so they would be subjected to continuing liability for the support of the stepchildren. Voluntary assumption of support of stepchildren is to be encouraged, and we fail to see how the result sought by DSHS would promote such a desirable end.

2. Validity of WAC 388-11-190

Having concluded that James Montell is not a "custodial stepparent" and thus not chargeable for the support of Robert and Ronnie Fossum, we...