Worth v. Superior Court

• Decision Date: 08 February 1989
• Citation: 207 Cal.App.3d 1150,255 Cal.Rptr. 304
• Court: California Court of Appeals Court of Appeals
• Parties: Carol J. WORTH, Petitioner, v. SUPERIOR COURT, El Dorado County, Respondent, Nathaneal C. WORTH, Real Party in Interest. Civ. C004376.

Page 304

255 Cal.Rptr. 304

207 Cal.App.3d 1150

Carol J. WORTH, Petitioner, v. SUPERIOR COURT, El Dorado County, Respondent, Nathaneal C. WORTH, Real Party in Interest.

Civ. C004376.

Court of Appeal, Third District, California.

Feb. 8, 1989.

Ronald Tepper, Dist. Atty. and Jonathan P. Burris, Deputy Dist. Atty., for petitioner.

No appearance for respondent.

No appearance for real party in interest.

CARR, Acting Presiding Justice.

Petitioner seeks a writ of mandate directing respondent superior court to vacate its order denying her motion to compel discovery and to enter a new order granting the motion.

As of October 23, 1985, the marriage of petitioner and real party in interest (real party) was dissolved. On May 5, 1987, a judgment was entered ordering real party to pay petitioner a total of $582.00 per month in child support for two children and $522.00 per month in spousal support. Declaring that real party failed to pay the support ordered by the court, petitioner obtained a writ of execution and commenced other proceedings in an effort to obtain the support payments. Throughout these and later proceedings, petitioner was represented by the Office of the District Attorney of El Dorado County.

On December 3, 1987, real party filed a motion to modify downward the child support and to terminate spousal support. Petitioner served notice of deposition on real party, requiring him to produce certain documents. Real party filed opposition to the notice of deposition, and petitioner filed a motion to compel real party to appear for his deposition and to produce documents. Real party filed opposition to the motion to compel, asserting that the district attorney was not authorized to represent petitioner in proceedings relating to modification of the child support and spousal support order. On March 4, 1988, respondent court denied petitioner's motion to compel.

Petitioner filed the instant mandamus petition on May 3, 1988. On May 19, 1988, we stayed hearing on the motion to modify the child support and spousal support order, pending further order of this court. In addition, we notified the parties we were considering issuing a peremptory writ in the first instance and that any opposition to the petition was to be filed on or before June 3, 1988. Real party has not filed opposition to the petition. We shall issue a peremptory writ of mandate.

Real party refuses to comply with the discovery requests solely on the ground that the district attorney is not authorized to represent petitioner in proceedings by which real party seeks modification of the child and spousal support order. Recognizing that the California Supreme Court has held that the district attorney may not prosecute civil actions in the absence of specific legislative authorization (People v. McKale (1979) 25 Cal.3d 626, 632-633, 159 Cal.Rptr. 811, 602 P.2d 731; Safer v. Superior Court (1975) 15 Cal.3d 230, 236, 124 Cal.Rptr. 174, 540 P.2d 14), petitioner contends that the district attorney's participation in the underlying proceedings is authorized by Welfare and Institutions Code section 11475.1, which is set out in pertinent part in the margin. ¹

In a concurring opinion from this court on an issue not tendered by the appeal, one justice has determined that Welfare and Institutions Code section 11475.1 does not authorize a district attorney's representation of individuals not receiving public assistance or Aid to Families with Dependent Children (AFDC). (See In re Marriage of Bailey (1988) 198 Cal.App.3d 505, 511-518, 243 Cal.Rptr. 776 (conc. opn. of Evans, J.).) We reject that determination, nonbinding on trial courts for lack of a concurrence, as contrary to the express statutory language of section 11475.1. (See id., conc. opn. of Sims, J.)

Welfare and Institutions Code section 11475.1 is among the statutes enacted by the California Legislature to implement the state's participation in the federal AFDC program. (See Welf. & Inst.Code, §§ 10600 et seq. and 11200 et seq.) "AFDC is an elective program in which California has chosen to participate. [Citation.] Once a state has elected to participate in the AFDC program, it must comply with the mandatory requirements established by the Social Security Act and implemented by regulations promulgated by the Department of Health, Education and Welfare. [Citation.]" (Burnham v. Woods (1977) 70 Cal.App.3d 667, 673, 139 Cal.Rptr. 4, citing Garcia v. Swoap (1976) 63 Cal.App.3d 903, 909, 134 Cal.Rptr. 137.) A 1975 amendment to title IV of the federal Social Security Act mandates that states which participate in the AFDC program shall provide child support collection services to all individuals, whether or not the individuals are receiving public assistance. (42 U.S.C. § 654(6)(A); 45 C.F.R. § 302.33(a).) It has been uniformly held that support obligation enforcement services supplied to persons on AFDC must also be made available to persons not receiving public assistance. (See Carter v. Morrow (W.D.N. Car.1983) 562 F.Supp. 311; State ex rel. Jeske v. Jeske (1988) 144 Wis.2d 364, 424 N.W.2d 196; S.C. Dept. of Social Services v. Deglman (1986) 290 S.C. 542, 351 S.E.2d 864; State v. Wagner (App.1986) 136 Wis.2d 1, 400 N.W.2d 519; Colorado Div. of Employment v. Wells (Colo.App.1984) 693 P.2d 1027; see also Morris v. Cohen (1983) 149 Cal.App.3d 507, 510-512, 196 Cal.Rptr. 834; In re Marriage of Guardino (1979) 95 Cal.App.3d 77, 84-85, 156 Cal.Rptr. 883.)

Section 11475.1 complies with this mandate. The statute specifically states that the district attorney "shall have the responsibility for promptly and effectively enforcing child and spousal support obligations" and that the district attorney "shall take appropriate action, both civil and criminal, to enforce this obligation when the child is receiving public assistance, including Medi-Cal, and when requested to do so by the individual on whose behalf enforcement efforts will be made when the child is not receiving public assistance [.]" The statute further directs the county to "undertake an outreach program to inform the public that this service is available to persons not receiving public assistance." (Emphasis added.) The fact that petitioner may not be receiving public assistance is no impediment to her substituting the district attorney as her counsel of record.

Section 11475.1 also authorizes the district attorney to oppose requests for modifications of support orders. As noted, the statute directs the district attorney to "promptly and effectively enforc[e] child and spousal support obligations," and the statute expressly commands the district attorney to "take appropriate action ... to enforce this obligation...." Common meanings of "enforce" include, "to give force to: REINFORCE ... to urge with energy...." (Webster's New Internat. Dict. (3d ed. 1971) p. 751.) The duty to "enforce" child and spousal support obligations therefore includes the duty to "reinforce" them or to "urge" them; i.e., to oppose their reduction or elimination. Moreover, this is the only meaning of "enforce" that can be reconciled with the apparent purpose of section 11475.1, which is to provide attorney representation to those receiving support so that they may effectively compel those obligated for support to pay it. The interest of the supported spouse or child in obtaining support is not less simply because the procedural context involves a reduction or loss of support through modification. We do not see how the Legislature could have intended to authorize the district attorney to participate in the establishment and enforcement of support orders but not in proceedings to reduce or vacate the support orders.

Finally, we note that the language of Welfare and Institutions Code section 11475.1 facially contemplates authority to participate in modification proceedings, albeit with reference to the effective date of modification of support orders: "In any action brought for modification or revocation of an order that is being enforced under Title IV-D of the Social Security Act, the effective date of the modification or revocation shall be as prescribed by federal law (42 U.S.C. Sec. 666(a)(9)), or any subsequent date."

We therefore conclude that section 11475.1 authorizes a district attorney to oppose a requested modification of a support order.

Assuming In re Marriage of Brown (1987) 189 Cal.App.3d 491, 234 Cal.Rptr. 535 is correctly decided, it is distinguishable. In Brown the court held a district attorney was not empowered by Civil Code section 4801.7 to represent a spouse in her defense of a motion seeking the termination of spousal support. ² The rationale of the court's decision (189 Cal.App.3d at p. 496, 234 Cal.Rptr. 535), was that Civil Code section 4801.7 authorizes a district attorney only to "bring ... enforcement proceedings.... (Italics added.)" Though Civil Code section 4801.7 arguably limits the power of a district attorney to the initiation of proceedings, no comparable limitation is found in section 11475.1, which instructs a district attorney to "take appropriate action." Brown did not discuss or consider section 11475.1, and is of no assistance in determining the district attorney's authority under section 11475.1, the situation presented here. Cases are not authority for propositions not considered. (People v. Gilbert (1969) 1 Cal.3d 475, 482, fn. 7, 82 Cal.Rptr. 724, 462 P.2d 580; Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 1448, 1461, 249 Cal.Rptr. 688.)

Real party's only...