Van Dyke v. Thompson

• Decision Date: 02 June 1981
• Docket Number: No. 46714
• Citation: Van Dyke v. Thompson, 630 P.2d 420, 95 Wn.2d 726 (Wash. 1981)
• Parties: Sallie VAN DYKE, Respondent, v. Gerald THOMPSON, Secretary of the Department of Social and Health Services; Ralph W. Moldauer, District Supervisor of the Office of Support Services, Appellants.
• Court: Washington Supreme Court

Page 726

95 Wn.2d 726

630 P.2d 420

Sallie VAN DYKE, Respondent, v. Gerald THOMPSON, Secretary of the Department of Social and Health Services; Ralph W. Moldauer, District Supervisor of the Office of Support Services, Appellants.

No. 46714.

Supreme Court of Washington, En Banc.

June 2, 1981.

Ken O. Eikenberry, Atty. Gen., Michael T. Mitchell, Daniel J. Radin, Asst. Attys. Gen., Seattle, for appellants.

Evergreen Legal Services, Peter Greenfield, Seattle, for respondent.

Andrew Walkover, Professor of Law, Fredric C. Tausend, Dean and Professor of Law, Tacoma, for amicus curiae.

DOLLIVER, Justice.

Plaintiff Sallie Van Dyke is married to Sidney Van Dyke. Two children resulting from this marriage are living with them. Sidney Van Dyke has a child from a previous marriage who has never lived with plaintiff and her husband. Sidney Van Dyke, who is unemployed and has no assets, is obligated to pay monthly child support for the child of his previous marriage, pursuant to a decree of divorce entered on April 1, 1969. His payment of that obligation is in arrears.

In November of 1978, Sidney Van Dyke was served with a notice of debt and demand for payment from the Department of Social and Health Services (DSHS). This notice offered Sidney Van Dyke an opportunity for a hearing to determine the amount of his arrearage if he paid the amount DSHS had determined was then due. No notice or opportunity for a hearing was afforded plaintiff, Sallie Van Dyke. Sidney Van Dyke requested a hearing, but was not given one because he did not make payments as directed in the notice.

In May 1979, defendant served an order on plaintiff's employer to withhold and deliver to DSHS, 25 percent of her wages to satisfy the obligation to support the child of her husband's prior marriage.

Plaintiff brought this action for injunctive and declaratory relief. The trial court granted summary judgment to plaintiff. It held DSHS had no authority to collect the wages of a noncustodial stepparent to satisfy the noncustodial parent's obligation to support the child of a previous marriage. The court further enjoined defendants from taking plaintiff's wages to satisfy the claim for the support of Sidney's child by the previous marriage. Defendants appealed directly to this court.

Three questions are presented: (1) The applicability of RCW 26.16.205 to a noncustodial stepparent; (2) whether the holding of Fisch v. Marler, 1 Wash.2d 698, 97 P.2d 147 (1939), that the earnings of the obligated parent in a new community could be reached for child support, should be extended so that the interest of the obligated parent in the community earnings of the noncustodial stepparent could be reached for child support; and (3) if either (1) or (2) are answered in the affirmative, what are the due process requirements necessary to protect the new community of an obligated parent and a noncustodial stepparent. Because of our response to issues (1) and (2), we need not and do not reach issue (3).

I

The family support statute is RCW 26.16.205. In 1969, the legislature amended the statute to include stepchildren:

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.

(Italics ours.) RCW 26.16.205. Portions italicized were enacted in 1969. Laws of 1969, 1st Ex.Sess., ch. 207, § 1, p. 1549.

Defendants contend RCW 26.16.205 conflicts with previous common law principles in this state (Taylor v. Taylor, 58 Wash.2d 510, 364 P.2d 444 (1961), only stepparents in loco parentis were required to contribute to the needs of a child), and that its effect is to create obligations between stepparents and stepchildren equal to those between natural children and their parents. Thus, RCW 26.16.205 would apply to the community and separate property of both the encumbered parent and the noncustodial stepparent. On the only other occasion when the court considered RCW 26.16.205, the question of "whether the statutes apply to stepchildren not residing with stepparents" was specifically reserved. Washington Statewide Organization of Stepparents v. Smith, 85 Wash.2d 564, 565, n. 2, 536 P.2d 1202 (1975). It is the view of defendants that if the legislature had intended to restrict RCW 26.16.205 to custodial stepparents, it would have placed this qualification in the statute.

Plaintiff, however, asserts that if the legislature had intended this radical change in the common law its intent would have been clearly manifested. She points out there are two interpretations which can be given to the 1969 amendment: (1) A stepchild would be considered part of the family of a stepparent only if the stepparent were married to the child's custodial parent. This is simply a codification of the common law. Taylor v. Taylor, supra. It is the position of plaintiff. (2) The spouses of noncustodial obligated parents would be separately liable for the support of their spouse's children of earlier marriages. This is the position of defendants.

We cannot believe the legislature intended the result proposed by defendants. Nothing in the legislative history indicates such an intention. See Senate Journal, 41st Legislature, at 1413-14. Indeed, legislation passed during the same 1969 legislative session gives credence to a contrary view. RCW 26.16.200, the so-called "marital bankruptcy" statute, was also amended in 1969. The statute as amended provides that some antenuptial obligations may be enforced against a debtor who has subsequently married. It is limited in two critical ways: First, the antenuptial creditor must reduce the claim to a judgment within 3 years of the marriage. Second, the judgment is enforceable only against the earnings and accumulations of the debtor spouse. The 1969 amendment provided that "For the purpose of (RCW 26.16.200) neither the husband nor the wife shall be construed to have any interest in the earnings of the other". This specific immunizing of the earnings and accumulations of a nonobligated spouse from the creditors of the obligated spouse in RCW 26.16.200 is persuasive evidence that the same legislature did not intend to eliminate this immunity when it amended RCW 26.16.205.

If the legislature had intended the departure from the common law urged by defendants, it could have chosen clear, unambiguous language. Green Mountain School Dist. 103 v. Durkee, 56 Wash.2d 154, 351 P.2d 525 (1960). It did not do so. We reject the position of defendants and hold RCW 26.16.205 does not apply to either the separate or community property of a noncustodial stepparent.

II

It has been a basic principle of our community property law that community assets are not liable for the separate debts of a spouse. Achilles v. Hoopes, 40 Wash.2d 664, 245 P.2d 1005 (1952). An equally strong principle has been that the antenuptial responsibility for child support be met by an obligated parent. The conflict between these two principles was considered at length in Fisch v. Marler, supra. After an extended analysis, the court announced the following rules:

(1) The subsequent marriage of a divorced husband does not relieve him of his obligation to pay to his former wife permanent alimony as required by the decree of divorce, and the former wife has, and continues to have, a fixed and prior claim upon his earnings for the payment of such alimony. This rule finds particular support on grounds of justice and reason where there is a minor child or children of the former marriage.

(2) Garnishment is a proper proceeding to enforce such claims.

(3) The subsequent marriage of the divorced wife does not, of itself, terminate her fixed and prior claim upon the earnings of her former husband, whether he remarries or not, nor does her subsequent marriage ipso facto terminate her right to enforce her claim by garnishment. This rule is likewise particularly applicable in cases where there is a minor child or children of the former marriage.

(4) Although the claim of the divorced wife upon the earnings of her former husband is a fixed and prior one, it is not in all cases to be enforced to the point of exhaustion of such earnings, for the present wife also has a claim thereon which is entitled to consideration. Upon a showing by the present wife of necessitous circumstances, particularly where there is a minor child or children of the husband's subsequent marriage, the court may make such adjustment and allocation of the husband's earnings as may appear to it to be just and equitable in the premises.

(5) For the purpose of securing or protecting such rights as she may have in the earnings of her husband, the present wife may intervene in any proceeding which affects such earnings.

Fisch, 1 Wash.2d at 715-16, 97 P.2d 147. It should be noted that the term "alimony" as used in Fisch v. Marler, supra, includes child support.

It is the contention of defendants that Fisch v. Marler was concerned with the obligation of the community to the antenuptial responsibility for child support. They subscribe to the view expressed in dicta in Hinson v. Hinson, 1 Wash.App. 348, 353, 461 P.2d 560 (1969):

The reasoning in Fisch v. Marler, supra, is equally applicable to the duty of child support imposed on both father and mother by statute. RCW 26.16.205; Hector v. Hector, (51 Wash. 434, 99 P. 13 (1909)). Therefore, a man who marries a woman with children in the custody of the father, or a woman who marries a man with children in the custody of the mother, enters the new marriage relation subject to prior claim of child support against the community property of the new marriage. As a consequence, the earnings of the new community can be required to respond in contribution for reasonable child support, whether or not the...