Orange County Appeals Ruling : Court to Decide on Burden of Proof in Child Support

The Supreme Court agreed Monday to decide who must prove whether a father can afford to pay his legal child support: the father or county officials.

The justices said they will review a California court ruling--labeled by Orange County prosecutors as a “travesty of justice”--that could allow self-employed fathers to escape their obligations to their children.

A state appeals court said last year that a father could not be held in contempt for not paying his child support. To do so, the court reasoned, would be unfair because it would leave the father in the position of being guilty until proved innocent, representing a “mandatory presumption” of guilt that is “unconstitutional” in civil as well as criminal cases.

‘Novel Opinion’

Orange County Dist. Atty. Cecil Hicks told the justices that this was a “novel opinion which contradicts all other California cases on the subject since the 1800s.” He contended that the decision not only turns the law on its head but also wreaks havoc with the county’s efforts to ensure that parents meet their legal financial commitments to their children.

“There are not enough investigators available to have one sitting in each debtor’s driveway,” Hicks said. By giving the county the burden of proof in child support cases, the California court “effectively exempts a class of individuals--those who are self-employed--from application of the law.”

Such individuals often do not possess pay stubs that can be tracked and recorded by county officials. Thus, he said, a mother who does not receive a monthly payment is also not in a position to get evidence that could show that her former husband can afford the payments.

“Unfortunately, such parents cannot manufacture evidence as easily as the Court of Appeal can change the rules of the game,” Hicks said.

Payments Cease

In 1976, Phillip and Alta Sue Feiock were divorced, and the father was ordered to pay $225 a month to help support their three children. After the mother moved the family to Ohio, the payments ceased, county officials said.

A Superior Court judge found Feiock in contempt of court for refusing to make the child payments, even though he had the funds to pay other debts. However, a three-judge appellate court in Santa Ana overturned that ruling and declared that such standard contempt orders are unconstitutional.

Orange County prosecutors appealed to the California Supreme Court, which refused to hear the case. The prosecutors then appealed to the U.S. Supreme Court in November.

Arguments in Fall

Oral arguments in the case (Hicks vs. Feiock, 86-787) will be heard next fall. A ruling probably will not be made until June, 1988.

The high court Monday also agreed to decide:

--Whether alcoholism is a handicap or an example of “willful misconduct.” The Veterans Administration refused to extend educational benefits to two veterans who were recovering alcoholics. The government said that their drinking justified the action, but the two contend that their condition is a disability covered by federal civil rights laws (Traynor vs. Turnage, 86-622).

--Whether a state must give unemployment benefits to a drug rehabilitation counselor who was fired after using peyote during an Indian religious service. State officials in Oregon said this practice violated anti-drug policies, but the counselor likened it to having “consumed wine at a Catholic ceremony.” Peyote, which contains the hallucinogen mescaline, is an illegal drug in Oregon (Employment Division of Oregon vs. Smith, 86-946).