THE CONSTITUTIONALITY OF CHILD SUPPORT GUIDELINES, Part I
Laura W. Morgan
On February 27, 2002, the Honorable Dane Perkins of the Superior Court of Atkinson County, Georgia, issued a sweeping decision in the case of Georgia Department of Human Resources ex rel. Reddick v. Sweat, declaring the Georgia child Support Guidelines void and unconstitutional as a violation of due process, equal protection, the right of privacy (the right of parents to raise their children as they see fit), and a violating of the Georgia constitution which prohibits the taking of property.
This decision was ill-conceived and ill-reasoned. It misstates the law and misquotes the economic studies on which the guidelines are based in order to set up a strawman to knock down. It miscites and misquotes cases from other states as well.
This article will be in two parts, the first appearing this month, the second appearing next month. This first part will review the current case law addressing the constitutionality of child support guidelines across the country. The second part will focus on the Georgia decision.
I. Federal Mandate as Unconstitutional
In Childrens and Parents Rights Association of Ohio, Inc. v. Sullivan,1 the court considered an argument that the federal statutes and regulations governing child support, i.e., the requirement that all states enact child support guidelines, are unconstitutional. The plaintiffs first asserted that the federal mandate allowed the states too great a role in determining child support. Since the federal government has taken the role of enforcing child support through AFDC, the federal government could not delegate that same authority to the states. In the alternative, the plaintiffs asserted that the federal government is overly involved in child support determinations, a matter that should be left to the states. The court easily disposed of all arguments. First, valid federal policies may be executed with state cooperation. The Constitution does not require that all welfare programs be either completely federally administered, or completely left to the states. Rather, the Supreme Court has recognized that the AFDC program is based on a scheme of cooperative federalism.2 Second, relevant authority teaches us that the federal government may, in the exercise of its spending power, require that states adhere to certain rules as a condition to receiving federal funds. The spending power is limited only by the requirement the requirement that it be in pursuit of the general welfare. The child support regulations enacted by the Department of Health and Human Services passed constitutional muster on all points, because the adequate support of children was clearly in pursuit of the general welfare.
II. Method of Enactment by State as Unconstitutional (Violation of Separation of Powers)
A. Enactment by Court Order
Where guidelines were enacted by court order or decision, the guidelines were challenged as a violation of separation of powers. These challenges posit the argument that judges are improperly making substantive rules of law, a function of the legislative branch.
Some constitutional challenges have come from the very judiciary enacting the child support guideline. For example, in 1989, the Maine Supreme Court issued its guidelines by a four to seven vote after being directed by the state legislature to enact child support guidelines. The statement of nonconcurrence stated,
At the legislatures direction, the Court has set out upon a path it has never previously taken. Today the Court writes law in a context divorced from the decision of any particular case and in an area not involving the customary work day rules of court like procedure, evidence, and lawyer/judge discipline. The Child Support Guidelines involve difficult and abstract questions of policy that the peoples elected representatives, not this Court, should decide. At the very least, an executive agency should promulgate such rules according to standards set by the legislature.3
Maine subsequently enacted its child support guidelines by legislative act.4
Similarly, Alaska adopted its guidelines by court rule. One justice dissented, stating that the new court rule purported to establish substantive rules of law governing support awards. Citing the Alaska Constitution,5 the dissent claimed the court was empowered to make rules of law only in actual cases, in the administration of the courts, and in matters of practice and procedure.6 The same constitutional argument was raised when Arkansas adopted its child support guidelines by order of the Supreme Court, when one justice declared that the legislature had unconstitutionally delegated the authority to legislate to the court.7 In both Alaska and Arkansas, however, the majority of the court declared that the legislation authorizing the court to promulgate child support guidelines must be presumed to be constitutional; any challenge must come from party litigants.
The same arguments were raised by private litigants in Arizona.8 In that case, the court disposed of the constitutional argument by declaring, he guidelines are merely that, guidelines. They are to assist the trial courts of Arizona in applying the factors set forth in the statute.9 Because the guidelines operate as a presumption, they are merely procedural in nature, and not a substantive rule of law. Thus, promulgation of the guidelines were within the courts rule-making ability. The courts of Alaska,10 Delaware,11 the District of Columbia,12 and Ohio,13 also agreed that promulgation of child support guidelines were within the courts rule-making powers.14 The courts must, however, adhere to proper procedure in exercising their rule-making powers.15
B. Enactment by Legislature
Where the guidelines were enacted by the legislature, some litigants have argued that such action encroached on judicial discretion.
In Boris v. Blaisdell,16 the father argued that the Illinois child support guidelines violate the separation of powers requirement of the Illinois Constitution. The court disposed of this argument by characterizing the child support guidelines as involving the application of substantive law. Thus, the enactment of child support guidelines could no more be an incursion into the power of the judiciary than the prior law establishing child support awards pursuant to certain enumerated factors.17
C. Enactment by Administrative Regulation
Finally, where the guidelines were adopted by administrative regulation, the constitutional challenge was based on the argument that the administrative agency enacting the child support guidelines must do so in accordance with the states version of the Uniform Administrative Procedures Act. Failure to do so will render the guidelines infirm. This argument was successful in Illies v. Illies.18 In that case, the court held that the North Dakota Department of Human Services is an administrative agency subject to the strictures of the states Administrative Agencies Practice Act. The regulations were subsequently re-promulgated in accordance with the act.
III. Application of State Guidelines as Violation of Due Process
Some litigants have argued that the application of child support guidelines in their particular case constitutes a violation of due process. In Schenek v. Schenek,19 the father argued that the child support guidelines violated due process because the state guidelines contain provisions not required by the federal legislation. The court held that the guidelines passed constitutional muster, because the court has the authority to deviate in the appropriate circumstances. Thus, as long as the guidelines are equitably applied and provide for discretion to suit the particular circumstances of each case, they are not constitutionally infirm.
The court in Boris v. Blaisdell,20 reached the same conclusion. Because no irrebuttable presumption operates, but rather the guidelines create a fully rebuttable presumption of applicability, the guidelines are constitutional in their operation.21
IV. Application of State Guidelines as Violation of Equal Protection
The various states child support guidelines have come under a variety of equal protection attacks. For example, in In re Marriage of Dade,22 the father challenged the child support guidelines on the grounds that the guidelines allowed consideration of income of the spouse of the noncustodial parent, but not the income of the spouse of the custodial parent. The court held that this was a misreading of the statute; both spouses incomes could be considered in the appropriate circumstances. Thus, the guidelines were not a denial of equal protection.23
In Coghill v. Coghill,24 the court also rejected an equal protection claim. In that case, the father argued that Alaska&146;s child support guidelines, which consider only the income of the noncustodial parent, violated equal protection. The father was essentially arguing that the Percentage of Income Model was unconstitutional.25 The court responded to this argument by declaring that equal protection has never required that differently situated persons be treated the same way. Because the custodial and noncustodial parents are not similarly situated, they may be treated differently. Moreover, the interest a parent is seeking to protect is an economic interest. The government needs only a rational basis to enact legislation touching on these interests. The equal protection argument must therefore fail.26
In P.O.P.S. v. Gardner,27 a group called Parents Opposed to Punitive Support challenged the Washington guidelines as violative of the equal protection rights of children living in the noncustodial parents household. The group claimed that children living with the noncustodial parent were denied equal protection, because their support was determined after, and thus necessarily on a smaller basis than, the support of prior child. The court disagreed, and held that because the schedule explicitly permitted the court to consider children from the noncustodial household, the childrens equal protection rights were not violated. Moreover, the 14th amendment does not mandate the rigid policy prescriptions urged by P.O.P.S.28
Two more recent cases did find a violation of equal protection, but under very specific circumstances, and the whole guidelines were not declared infirm, just a particular application. In Orange County v. Ivanesco,29 the court held that Cal. Fam. Code § 4071.5 is unconstitutional, because it deprives a trial court the discretion to consider an obligors expenses for a child living with him or her if the children for whom support is being determined are AFDC recipients. If the children are not AFDC recipients, then the court can consider the obligors expenses for a children living with him or her. Such a distinction, the court held, was a violation of equal protection serving no rational basis.
In Gallaher v. Elam,30 a slip opinion by the Tennessee Court of Appeals, the court found that the specific provision of the Tennessee child support guidelines that does not allow an obligor to deduct from income the support paid for children not covered by the order, or allow the court to deviate for those children, violates the equal protection clause. The court found that the first families first bias inherent in the guidelines was a violation of equal protection. The court noted the decision in dissent in Feltman v. Feltman, but failed to note Stewart v. Winfrey, or Martinez v. Martinez (note 28). The court concluded that the guidelines were unconstitutional because the state has no business discriminating between chidlren based solely on the fact of divorce, [and] there is no legitimate state purpose in requiring a parent to allocate his or her income more to one child than another.
V. Other Constitutional Challenges to State Guidelines
In what has to be the most novel challenge to a states child support guidelines, the father in Hunt v. Hunt31 contended that the courts order requiring him to pay child support under the states guidelines violated his first amendment rights of free exercise of religion. In particular, the father claimed that he could not, consistent with his faith, work outside the community and earn money to meet his support obligation as determined by the court. The court disposed of this argument, holding that the parental obligation of support is a compelling state interest for purposes of determining whether a parent can be forced to pay child support even though it burdens his religious beliefs.
In another novel constitutional challenge, in Shrivastava v. Mates32 the father challenged the application of the child support guidelines in his particular case because he and the wife had entered into a contract regarding the support of the children prior to the enactment of the guidelines. Specifically, he argued that application of the guidelines in his case would impair the obligation of the contract in violation of the Contract Clause of the United States Constitution. The court disposed of the argument, holding that while the application of the guidelines might operate as an impairment of the contractual relationship between the mother and father, the guidelines further a significant and legitimate public purpose. Moreover, even before the guidelines were enacted, the parties could not by contract bind a court to a particular amount of child support, so there really was no contract impaired.33
1. 787 F. Supp. 724 (N.D. Ohio, 1991), and its companion case at 787 F. Supp. 738 (N.D. Ohio, 1992).
2. King v. Smith, 392 U.S. 309 (1968).
3. 3Admin. Order No. SJC-13, Maine Sup. Jud. Ct. (1989) (Roberts, J., Glassman, J., Hornby, J., noncurcurrence).
4. Me. Rev. Stat. Ann. tit. 19, §§ 311 to 320.
5. Alaska Constitution, art. IV, §§ 1, 15.
6. Alaska Civ. R. 90.3 (1989) (Burke, J., dissenting).
7. In re Guidelines for Child Support Enforcement, 301 Ark. 627, 784 S.W.2d 589 (1990) (Hickman, J., dissenting).
8. Schenek v. Schenek, 161 Ariz. 580, 780 P.2d 413 (Ct. App. 1989).
9. 780 P.2d at 414.
10. Coghill v. Coghill, 836 P.2d 921 (Alaska 1992).
11. Dalton v. Clanton, 559 A.2d 1197 (Del. 1989).
12. Fitzgerald v. Fitzgerald, 566 A.2d 719 (D.C. 1989). It should be noted that while the appellate court upheld the superior courts authority to promulgate child support guidelines under its rule-making authority, the appellate court held that in the present instance, the superior court could only adopt rules that did not conflict with existing substantive law. In the present case, the child support guidelines did conflict with substantive law, and were thus invalid. Subsequently, the D.C. Council enacted as permanent legislation a new child support guideline, specifically providing that a child support order shall not be deemed invalid on the sole basis that the order was issued pursuant to the Superior Court rule. See A.S. v. District of Columbia ex rel. B.R., 593 A.2d 646 (D.C. 1991) (upholding order issued under previous Superior Court rules).
13. Lynch v. Lynch, 1989 Westlaw 146613 (Ohio Ct. App. 1989); Surman v. Surman, 1989 Ohio App. Lexis 2558 (1989).
14. See Mistretta v. United States, 488 U.S. 361, 109 S. Ct. 647 (1989) (federal sentencing guidelines do not violate constitutional separation of powers).
15. See Blackston v. State of Alabama, 30 F.3d 117 (11th Cir. 1995) (where Supreme Court Advisory Committee on Child Support Guidelines refused group of noncustodial fathers to tape-record the Committees meetings, such actions violated the noncustodial fathers first amendment rights).
16. 142 Ill. App. 1034, 492 N.E.2d 622 (1986).
17. Accord A.S. v. District of Columbia ex rel. B.R., 593 A.2d 646 (D.C. 1991); In re Marriage of Cook, 147 Ill. App. 3d 134, 497 N.E.2d 1029 (1986); Pauling v. Pauling, 837 P.2d 1073 (Wyo. 1992). See also Sharp v. Sharp, 422 S.W.2d 443 (S.D. 1988).
18. 462 N.W.2d 878 (N.D. 1990). Accord Eklund v. Eklund, 538 N.W.2d 182 (N.D. 1995). Cf. Iowa ex rel. Allee v. Gocha, 555 N.W.2d 683 (Iowa 1996) (statute authorizing state agency to prepare child support orders and present them to district court for summary approval does not violate separation of powers doctrine, because it does not limit courts substantive inquiry into support orders); Chastain v. Chastain, 932 S.W.2d 396 (Mo. 1996) (state agencys power to modify judicial support order where collection is assigned to Title IV-D agency is not unconstitutional); Nelson v. Nelson, 547 N.W.2d 741 (N.D. 1996) (regulations concerning imputation of income were not beyond rule-making authoirty of agency); Surerus v. Matuska, 548 N.W.2d 384 (N.D. 1996) (adoption of child support guidelines by administrative regulation permitting imputation of income did not exceed rule-making authority of Department of Human Services).
19. 161 Ariz. 580, 780 P.2d 413 (Ct. App. 1989).
20. 142 Ill. App. 1034, 492 N.E.2d 622 (1986).
21. Accord P.O.P.S. v. Gardner, 998 F.2d 764 (9th Cir. 1993) (discussing Washington state guidelines, court held that guidelines do not violate procedural due process rights of divorcing parents, even if schedule does not enable parents to show that individualized costs of care for their children differed from assumptions underlying table); Coghill v. Coghill, 836 P.2d 921 (Alaska 1992); Elliott v. Williams, 631 So. 2d 1020 (Ala. Civ. App. 1993) (enactment of child support guidelines does not remove courts discretion, and thus Supreme Courts enactment of guidelines does not violate Alabama Constitution); A.S. v. District of Columbia ex rel. B.R., 593 A.2d 646 (D.C. App. 1991); In re Marriage of Cook, 147 Ill. App. 134, 497 N.E.2d 1029 (1986); In re Marriage of Soden, 251 Kan. 225, 834 P.2d 358 (1992); Esber v. Esber, 63 Ohio App. 3d 394, 519 N.E.2d 222 (1989) (guidelines do not violate due process rights of noncustodial fathers new wife by considering her income in determining income available to father); Hur v. Virginia Department of Social Services, Division of Child Support Enforcement ex rel. Klopp, 13 Va. App. 54, 409 S.E.2d 454 (1991); Raz v. Brown, 213 Wis. 2d 296, 570 N.W.2d 605 (Ct. App. 1997).
22. 230 Cal. App. 3d 621, 281 Cal. Rptr. 609 (1991).
23. Accord Wheaton-Dunberger v. Dunberger, 137 N.H. 504, 629 A.2d 812 (1993) (father claimed that the guidelines violated the equal protection clause because the court designated him as the obligor parent, even though both the mother and father had joint physical custody; court disposed of this argument, holding that the father was designated the obligor because he had vastly superior financial resources; if the mother had greater resources, shed be the obligor); Hur v. Virginia Department of Social Services, Division of Child Support Enforcement ex rel. Klopp, 13 Va. App. 54, 409 S.E.2d 454 (1991).
24. 836 P.2d 921 (Alaska 1992).
25. See § 1.03[b] of Laura W. Morgan, Child Support Guidelines: Interpretation and Application regarding the percentage of income model.
26. Accord In re Marriage of Cook, 147 Ill. App. 134, 497 N.E.2d 1029 (1986); Reeves v. Reeves, 584 N.E.2d 589 (Ind. Ct. App. 1992); In re Marriage of Rudish, 472 N.W.2d 277 (Iowa 1991); Eklund v. Eklund, 538 N.W.2d 182 (N.D. 1995); see also Cole v. Cole, 70 Ohio App. 3d 188, 590 N.E.2d 862 (1990) (child support guidelines do not violate equal protection of incarcerated parent by not suspending payment of child support while parent is in jail).
27. 998 F.2d 764 (9th Cir. 1993).
28. See also Stewart v. Winfrey, 308 Ark. 277, 824 S.W.2d 373 (1991) (child support guidelines do not violate equal protection of other children of parents by according preference for prior born children, as guidelines consider other children as deviation factor); Martinez v. Martinez, 282 N.J. Super. 332, 660 A.2d 13 (Ch. Div. 1995) (child of first marriage was not denied equal protection by consideration of fathers children of second marriage under guidelines); State ex rel. Osborn (Mumau) v. Hill, 25 Fam. L. Rep. (BNA) 1205 (Ohio Ct. App. Feb. 9, 1999) (statutory provision that allows a deduction from gross income for ordinary and necessary business expenses of self-employed individuals does not amount to unconstitutional discrimination in violation of the equal protection clause against those who are not self-employed); Feltman v. Feltman, 434 N.W.2d 590 (S.D. 1989) (child support guideline statute does not violate equal protection rights of children of second marriage by giving child support priority to children of first marriage).
29. 67 Cal. App. 4th 328, 78 Cal. Rptr. 2d 886 (1998).
30. 2002 WL 121610 (Tenn. Ct. App. Jan. 29, 2002).
31. 162 Vt. 423, 648 A.2d 843 (1994).
32. 93 Md. App. 320, 612 A.2d 313 (1992).
33. Accord Childrens and Parents Rights Association, Inc. v. Sullivan, 787 F. Supp. 724, 736 (N.D. Ohio, 1991) (noncustodial parents claim that child support laws violated contract clause of constitution and the prohibition against ex post facto laws border on the frivolous); Pauling v. Pauling, 837 P.2d 1073 (Wyo. 1992) (child support guidelines do not violate contract clause of Wyoming constitution).
34. Garrod v. Garrod, 590 N.E.2d 163 (Ind. Ct. App. 1992).
35. In re Marriage of Armstrong, 831 P.2d 501 (Colo. Ct. App. 1992). See also Stewart v. Stewart, 866 S.W.2d 154 (Mo. Ct. App. 1993) (in concurring/dissenting opinion, court raised spectre of 13th Amendment in forcing ones spouse to accept whatever employment is available).
36. Childrens and Parents Rights Association, Inc. v. Sullivan, 787 F. Supp. 724 (N.D. Ohio, 1991).