Moreno v. Draper
| Decision Date | 15 March 1999 |
| Docket Number | No. F028500,F028500 |
| Citation | 70 Cal.App.4th 886,83 Cal.Rptr.2d 82 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 99 Cal. Daily Op. Serv. 1902, 1999 Daily Journal D.A.R. 2414 Lisa Ann MORENO, Plaintiff and Appellant, v. Edgar Ray DRAPER, Jr., Defendant and Respondent. |
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; Family Code § 4071.5.) In County of Orange v. Ivansco (1998) 67 Cal.App.4th 328, 78 Cal.Rptr.2d 886, the Fourth District,
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.
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 past month, and monthly expenses of $2,290.83, including $700 for rent and $354 for a car payment.
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 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 Avenue 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 section 4071.5, as Charles was currently receiving public assistance, but sought a special circumstance deduction under section 4057, subdivision (b)(5). According to Draper's attorney, the need for a special circumstance deduction was based on Draper's net monthly income of approximately $2,000, having a wife who did not work, three children currently living with him, and residence in Santa Clara County.
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.
I. Introduction **
II. Constitutionality of section 4071.5
We return to Moreno's claim that the trial court erred in granting Draper a hardship deduction under section 4071.5, as Draper was statutorily ineligible for such a deduction since Charles was receiving public assistance. Section 4071.5 provides:
"For purposes of computing the minimum level of child support under Section 4070, no hardship shall be deemed to exist and no deduction from income shall be granted if aid payments are being made pursuant to Chapter 2 (commencing with Section 11200) of Part 3 of Division 9 of the Welfare and Institutions Code on behalf of a child or children of the parent seeking the deduction, even if the payments are being received by the other parent."
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, 69 Cal.Rptr.2d 819, where we held it was error to grant Gibbs a hardship deduction since his noncustodial child was receiving public assistance. (Id. at p. 1426, 69 Cal.Rptr.2d 819.)
But for a recent appellate case, County of Orange v. Ivansco, supra, 67 Cal.App.4th 328, 78 Cal.Rptr.2d 886, 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 Stanislaus v. Gibbs, supra, 59 Cal.App.4th at p. 1426, 69 Cal.Rptr.2d 819.) In Ivansco, however, the court addressed a novel issue regarding section 4071.5: its constitutionality under the equal protection clause. Under the circumstances, we feel it necessary to address the constitutionality of section 4071.5, and the validity of Ivansco in the context of this case.
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, 78 Cal.Rptr.2d 886.)
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." (67 Cal.App.4th at p. 331, 78 Cal.Rptr.2d 886, 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, 78 Cal.Rptr.2d 886.)
Although Ivanscowas 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.
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, 64 L.Ed. 989.) As clearly articulated by Justice White in City of Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313:
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