City and County of San Francisco v. Freeman

Page 132

84 Cal.Rptr.2d 132

71 Cal.App.4th 869, 99 Cal. Daily Op. Serv. 3037,

1999 Daily Journal D.A.R. 3893

CITY AND COUNTY OF SAN FRANCISCO, Plaintiff and Appellant, v. Wilbert FREEMAN, Defendant and Respondent.

No. A082244.

Court of Appeal, First District, Division 4, California.

April 27, 1999.

Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Carol Ann White, Statewide Child Support Coordinator, Mary A. Roth, Deputy Attorney General, for Plaintiff and Appellant.

Wilbert L. Freeman, Defendant and Respondent in pro. per.

POCHE, J.

The People appeal from an order of child support calculated by granting to Wilbert Freeman two hardship deductions in contravention of the provisions of Family Code section 4071.5 ¹ which the trial court found to be unconstitutional. We reverse and remand.

The San Francisco District Attorney filed a motion in January of l998 to modify Wilbert Freeman's 1992 child support order of $192 a month on grounds of a substantial increase in income and a change in circumstances since the date of that order. The order was for the support of a daughter, Patrice, born to Wilbert Freeman and Patricia Hunter in September 1981. Patrice and her mother receive public assistance benefits, formerly called AFDC. Freeman has since remarried and supports his nonworking wife and two young children, one of whom is an infant. ² In calculating Freeman's support obligation the court granted him two hardship deductions for these two minor children in fixing the support order for Patrice at $367 a month.

At the hearing on the motion held January 6, 1998, the People unsuccessfully objected to inclusion of the two hardship deductions in the calculation on the basis that section 4071.5 expressly 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 ... on behalf of a child ... of the parent seeking the deduction, even if the payments are being received by the other parent." The court responded to the People's objection to granting the hardship deductions by asserting "this court has found that the statute is not constitutional" and declined to recalculate the award. The court did indicate that a case involving its earlier ruling on statutory unconstitutionality was then pending before the Court of Appeal.

Discussion

There is nothing more in the record before us to indicate the basis upon which this finding of unconstitutionality was made, except that the prior ruling was apparently that made by the same commissioner in a case filed before this one and recently decided by Division Three of this court. (City and County of San Francisco v. Garnett (1999) 70 Cal.App.4th 845, 82 Cal.Rptr.2d 924.) In Garnett the commissioner found section 4071.5 to be "constitutionally discriminatory" and stated there "is no rational basis for requiring poorer people to pay more than richer people." (Id. at p. 848, 82 Cal.Rptr.2d 924.)

In Garnett Division Three found the statute passed constitutional muster under equal protection analysis. In Garnett the claim was advanced that the effect of the section was to increase the support obligation of the parent for a noncustodial child to the potential financial detriment of a child in the custody of that parent. Yet, in similarly situated families not receiving public assistance, the hardship deduction would be available to reduce the support obligation to the noncustodial child and thus to increase the disposable income available for the custodial child. (City and County of San Francisco v. Garnett, supra, 70 Cal.App.4th at p. 849, 82 Cal.Rptr.2d 924.)

Garnett rejected strict scrutiny. First, because it found that the statutory classification between children whose parents were not able to claim the hardship deduction and those who were was not one based upon an immutable trait or a disfavored characteristic. (City and County of San Francisco v. Garnett, supra, 70 Cal.App.4th at pp. 849-850, 82 Cal.Rptr.2d 924.) Second, even if the right of the resident child to be supported by the payer parent was fundamental, the burden on that right is indirect and uncertain. In short, the amount of money the payer parent devotes to support of a resident child is subject to a host of other laws, economic factors, and parental choices. (Id. at p. 850, 82 Cal.Rptr.2d 924.)

Because the purpose of the statute is to "maximize the recoupment from parents of public funds spent for their children's basic needs" the Legislature could rationally refuse to allow "parents to reduce their support obligations to nonresident children, and their concomitant obligations to reimburse the county for its expenditures on the children's behalf, in those cases where the county has intervened to relieve the children's hardship by providing public aid." (City and County of San Francisco v. Garnett, supra, 70 Cal.App.4th at p. 851, 82 Cal.Rptr.2d 924.) The court concluded that this purpose was served by the section, and held that the section withstood the equal protection challenge. (Id. at pp. 851-852, 82 Cal.Rptr.2d 924.)

Finally, Garnett noted that the difference between the two classes of parents was not, as the trial court suggested between rich and poor, because wealthy parents are unlikely to qualify for the hardship deduction. "The statute effectively distinguishes between parents with moderate and low income who meet their child support obligations without assistance from the state and those who do not." (City and County of San Francisco v. Garnett, supra, 70 Cal.App.4th at p. 851, 82 Cal.Rptr.2d 924.)

We have described Garnett in some detail because it involves a fact pattern virtually indistinguishable from our own--a parent from whom additional support is sought for a child living outside his home who, absent section 4071.5, might qualify for a hardship deduction based upon his support of a child (or children as here) living in his home.

About two weeks after appellant's opening brief was filed a contrary holding was made by the Fourth District in County of Orange v. Ivansco (1998) 67 Cal.App.4th 328, 78 Cal.Rptr.2d 886. That court held that section 4071.5...