Ruling on Child Support Assailed by Deputy D.A.

An appellate court opinion striking down a portion of a state law used to enforce court-ordered child support payments was assailed by an Orange County prosecutor Friday as “a very unfortunate decision” that will have “a dramatic and adverse impact” throughout California.

The ruling will seriously cripple efforts by prosecutors to get contempt-of-court citations against parents who fail to make such court-ordered payments, explained Orange County Deputy Dist. Atty. E. Thomas Dunn Jr.

Specifically, Dunn said, it will become difficult--if not impossible in some cases--to gather evidence that a person willfully ignored a court’s order to pay support.

Under the state Civil Code of Procedures, parents who fail to make court-ordered support payments must prove that they do not have the ability to pay.

However, in an opinion handed down this week in Santa Ana, the state 4th District Court of Appeal said this was unconstitutional because it is up to the prosecution to prove that a defendant can make such payments and is therefore guilty of contempt.

Just because a parent had the ability to pay when the original child support agreement was entered into is no guarantee that the parent still does at a later date, the court reasoned.

Therefore, it is up to prosecutors to show that a parent still has the ability because “obviously, financial circumstances change. The inference of continuing ability to pay weakens with the passage of time.”

The ruling grew out of a petition by Phillip Feiock of Anaheim, who had been found in contempt for not making court-ordered payments of $150 a month to support his three children.

The court said prosecutors could obtain the evidence that they need to prove that a parent has the ability to pay by simply subpoenaing employment records.

However, Dunn, who works in the district attorney’s family support division and argued the case before the appellate court, said it will not be that simple.

“When you have someone who is self-employed, it will be almost impossible to set up their financial condition,” he said. “They don’t have to give you that information because they can’t be forced to testify against themselves. They have the right to remain silent.”

Dunn also contended that the appellate court had been “so intent on declaring the statute unconstitutional” that the justices ignored the facts of the Feiock case in reaching their decision.

“In this case, the conviction was not based on the presumption (that Feiock had the ability to pay),” Dunn said. “It was based on his own testimony. They just used the case as a forum.”

‘Good, Hard Look’

Dunn said his office “is taking a good, hard look” at taking the case to the state Supreme Court and has been in contact with the state attorney general about such an action.

The opinion also created a conflict with a 1971 child support ruling by the appellate court covering Los Angeles and Ventura counties, he said, adding: “I imagine someone is liable to take this up (to the Supreme Court) to get a clarification.

“What concerns me most is not that it will hamper our enforcement efforts, but rather the impact it will have on some poor little mother out there just trying to get some money to feed her kids.”