Van Dyke v. Thompson

Utter, J.

(concurring in part, dissenting in part) — The majority concludes that RCW 26.16.205 does not apply to either the separate or community property of a noncustodial stepparent. I agree for the reasons its states. The majority next concludes that an obligation to support children of a prior marriage may not be enforced against the community earnings of a remarried, noncustodial stepparent. I cannot agree and believe the majority holding is contrary to fundamental community property law. The majority reaches a conclusion contrary to the views stated in H. Cross, The Community Property Law in Washington, 49 Wash. L. Rev. 729 (1974).

The majority states that the Court of Appeals in Hinson v. Hinson, 1 Wn. App. 348 , 461 P.2d 560 (1969), gave too expansive a reading to Fisch v. Marler, 1 Wn.2d 698 , 97 P.2d 147 (1939). There the Court of Appeals held, on the *734 reasoning of Fisch v. Marler, supra, that 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 the prior claim of child support. The court concluded: "As a consequence, the earnings of the new community can be required to respond in contribution for reasonable child support, whether or not the children are resident with the new community." Hinson , at 353.

The court further stated, at page 353:

Defendant's argument that public policy dictates the opposite conclusion as to a remarried mother is without merit in this day of women's emancipation and their participation at almost every level of responsibility in business, government and community affairs. Indeed, it would be contrary to public policy to permit either a father or a mother to evade his or her responsibility to support their offspring by the device of remarriage.

That conclusion was critically reviewed by Professor Harry M. Cross, The Community Property Law in Washington, supra, and accepted as correct. Professor Cross stated, at page 831:

Although somewhat startling, this result is probably sound. The fundamental idea of community property law is that the acquisitions during marriage result from the spouses working in their respective spheres. Hence, the husband's wages, though received from external sources, are in part "earned" by the wife maintaining the home. Ergo, there should be no necessary limitation on the enforceability of this antenuptial obligation only to wages or other income acquired by the "encumbered" spouse!"

The Court of Appeals reasoning in Hinson makes great common sense as well as good law. The bugaboos envisioned by the majority are insufficient to overcome the reasoning of Hinson and the need for consistency in community property theory. I would hold that in absence of necessitous circumstances, an obligation to support the children of a prior marriage may be enforced against the community earnings of the new community, including the *735 earnings of the noncustodial stepparent. A new community should not be able to avoid a prior support obligation by deciding that only the nonobligated spouse shall work.

I still cannot hold for the Department, however, as I believe the method used by DSHS to obtain the stepparent's earnings did not comport with procedural due process. The garnishment of the stepparent's wages was a prejudgment seizure against the community, and since no opportunity for a meaningful prior hearing was provided, the procedure violated the due process guaranties of both the federal and state constitutions. Prejudgment seizure of property without prior notice and hearing violates due process unless extraordinary circumstances are present. Fuentes v. Shevin, 407 U.S. 67 , 32 L. Ed. 2d 556 , 92 S. Ct. 1983 (1972); Olympic Forest Prods., Inc. v. Chaussee Corp., 82 Wn.2d 418 , 511 P.2d 1002 (1973).

Reliance on Komm v. Department of Social & Health Seros., 23 Wn. App. 593 , 597 P.2d 1372 (1979), which appellants claim is factually identical, is misplaced. In Komm , DSHS provided foster care for the wife's children of a former marriage after she remarried, and sought to collect contribution for their support. DSHS served the wife, but not the husband, with notice of the administrative proceedings. At those proceedings the wife was found liable, and the Superior Court affirmed. Without further notice, DSHS then served the husband's employer with an order to withhold and deliver, under RCW 74.20A.080, as in this case. Rejecting the husband's argument that the garnishment of his wages was an unconstitutional prejudgment seizure, the Court of Appeals held that the seizure was postjudgment, following service upon the community's statutory agent, the wife. Service on both spouses was unnecessary because a judgment entered against one spouse is presumed good against the marital community. See Merritt v. Newkirk, 155 Wash. 517 , 285 P. 442 (1930). Northern Commercial Co. v. E.J. Hermann Co., 22 Wn. App. 963 , 593 P.2d 1332 (1979). The community, through the wife, was legally present at the administrative hearing and could *736 assert any and all defenses to DSHS' claim.

The Komms' community liability stemmed from the administrative determination, made during their marriage, of liability for support. Here, the determination of liability for support was made in 1969, when Sidney Van Dyke was divorced. Obviously, the new community of Sidney and Sallie Van Dyke did not even exist at that time. Thus, the child support determination cannot be presumed good against the new community. 1 See Merritt v. Newkirk, supra. Unlike Komm , the community in this case was not present when the support obligation was imposed and has not had an opportunity to assert its defenses. Therefore, the reasoning used by the Court of Appeals in Komm is inapplicable to the present case. The new party, the new community, may not be held responsible for an obligation existing before its creation and must have its day in court. The seizure of community assets was prejudgment and therefore both prior notice and a hearing were required to allow the community to raise defenses, including necessitous circumstances, and to determine the extent of community liability. Since DSHS failed to give the community a meaningful opportunity to raise its defenses, the procedure violated due process.

Both the United States Constitution, in the Fourteenth Amendment, and the Washington State Constitution, in article 1, section 3, guarantee that the State shall not deprive any person of property without due process of law. Ultimately, due process expresses "respect enforced by law *737 for that feeling of just treatment" and fairness "between the individual and government". Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 162 , 95 L. Ed. 817 , 71 S. Ct. 624 (1951) (Frankfurter, J., concurring). DSHS' seizure of Sallie Van Dyke's wages in this case did not comply with that standard of fundamental fairness. 2

Sidney Van Dyke was divorced from his former wife under a 1969 divorce decree which obligated him to pay $65 per month child support. He then married his present wife, Sallie. Sidney's payment of the support is in arrears, and public assistance has been paid for the benefit of the child. In 1978, the Office of Support Enforcement, pursuant to RCW 74.20A.040, served on Sidney a "Notice of Support Debt and Demand for Payment". The notice told Sidney that he could obtain a hearing by paying the amount for current and future support due under the Superior Court order, that the subject matter of the hearing was limited to the amount due, and that 20 days from service "your property, without further advance notice or hearing, is subject to collection action, in the form of [an] . . . order to withhold and deliver ..." Sidney requested a hearing, but did not receive one because he failed to pay the amount required. 3 DSHS, without further notice, then served an order on Sallie's employer to withhold and deliver 25 percent of her wages, under RCW 74.20A.080. This procedure does not satisfy the bare minimal requirements of due process.

What due process requires cannot be reduced to a formula, but depends on the nature of the particular situation. *738 Bell v. Burson, 402 U.S. 535, 540 , 29 L. Ed. 2d 90 , 91 S. Ct. 1586 (1971). Certain minimal requisites, however, are fixed. Olympic Forest Prods., at 423.

For more than a century the central meaning of procedural due process has been clear: "Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified." Baldwin v. Hale, [68 U.S.] 1 Wall. 223, 233 . It is equally fundamental that the right to notice and an opportunity to be heard "must be granted at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U. S. 545, 552 .

(Citations omitted.) Fuentes v. Shevin, supra at 80.

The hearing allowed by DSHS in this case was meaningless. First, DSHS conditioned the opportunity for a hearing on payment. Such a requirement imposes an unconstitutional condition on the exercise of a due process right.

"There are rights of constitutional stature whose exercise a State may not condition by the exaction of a price." Gar-rity v. New Jersey, 385 U.S. 493, 500 , 17 L. Ed. 2d 562 , 87 S. Ct. 616 (1967); see also Harman v. Forssenius, 380 U.S. 528, 540-41 , 14 L. Ed. 2d 50 , 85 S. Ct. 1177 (1965). In North Ga. Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 , 42 L. Ed. 2d 751 , 95 S. Ct. 719 (1975), the United States Supreme Court invalidated a Louisiana prejudgment garnishment statute. One of the faults found with the statute was that the only method the debtor had to dissolve the garnishment was to post a bond. North Georgia, at 607. The condition imposed in this case is even more onerous because it is a prerequisite to the exercise of the right to the hearing itself. Cf. Boddie v. Connecticut, 401 U.S. 371 , 28 L. Ed. 2d 113 , 91 S. Ct. 780 (1971) (state may not deny right to dissolution of marriage based on inability to pay court costs).

Second, DSHS limited the subject matter of the hearing to the amount of accrued support arrearages. Thus, even if the community could afford a hearing, it could not raise any defenses as to its substantive liability, including necessitous circumstances. Due process is afforded only by a *739 hearing which is aimed at establishing the validity of the underlying claim. Sniadach v. Family Fin. Corp., 395 U.S. 337, 343 , 23 L. Ed. 2d 349 , 89 S. Ct. 1820 (1969) (Harlan, J., concurring).

Although I believe the new community may, given a proper hearing and factual finding, be held liable in part for the support obligation of the "encumbered" spouse, I also believe, under the facts of this case, that the seizure of Sallie Van Dyke's wages violated due process and would therefore affirm the trial court for the reasons I have stated.

Williams, J., concurs with Utter, J.

A decree providing for child support requires a series of payments over time. For purposes of the statute of limitations, an installment of child support becomes an individual judgment when due and unpaid, and thus cannot be enforced more than 6 years after accrual. Roberts v. Roberts, 69 Wn.2d 863 , 420 P.2d 864 (1966); Mosher v. Mosher, 25 Wn.2d 778 , 172 P.2d 259 (1946). RCW 6.04.010. The record in this case does not indicate the date of Sidney's and Sallie's marriage, but presumably they were married when at least part of the support sought here became due. Thus, for purposes of the statute of limitations, individual judgments were accruing while the new community was in existence. However, the time those individual obligations became due is unrelated to the underlying substantive obligation, which was imposed before creation of the new community.

This case concerns only the procedure used by DSHS to enforce its right of subrogation to a child support debt. Collection of a child support debt by the custodial parent is not at issue here.

RCW 74.20A does not provide for a hearing when DSHS is seeking reimbursement based on a support obligation established by a superior court order. Cf. RCW 74.20A.055 (hearing opportunity when DSHS makes finding of financial responsibility, in absence of superior court order). DSHS' allowance of a hearing in this case, and the limitations on it, apparently stemmed from WAC 388-14-375 (repealed WSR 79-11-086,1979).