Court Ruling Called 'Victory for Kids'

Times Staff Writer

In light of the U.S. Supreme Court's decision Wednesday on an Orange County child-support case, an official with the Orange County district attorney's office said he plans to step up enforcement of child-support payments.

In its review of the case of Phillip William Feiock, a 45-year-old Anaheim man who has said he cannot afford to pay child support, the high court upheld the widespread practice by states of jailing or fining parents who fail to pay court-ordered child support--even if their ability to pay has not been proven.

"This is a victory for the kids," Chief Assistant Dist. Atty. Michael R. Capizzi said.

Before Wednesday, Capizzi said, a lower court order on Feiock's case had made the district attorney's office reluctant to invoke a state law authorizing prosecutors to jail or fine parents who do not keep up on their child-support payments.

That 1986 ruling by the state 4th District Court of Appeal in Santa Ana struck down as unconstitutional a portion of the law requiring parents who fail to make court-ordered payments to prove they do not have the ability to pay. The three-justice panel held that it is up to the prosecution to prove that a parent can make such payments.

In the wake of that ruling, the district attorney's office predicted that it would not be able to enforce support orders involving self-employed parents, who often keep no financial records.

The district attorney's office has estimated that it receives an average of five to 10 child-support cases per week involving self-employed parents. Without the threat of jail hanging over them, there is little incentive for these parents to pay if they don't want to, district attorney's officials have argued in court.

Now that the Supreme Court has ruled, Capizzi said, he will continue to permit his prosecutors to use the state law to jail non-paying parents, if necessary.

"The statute will make it easier to enforce child-support payments against parents who deny their children that obligation," Capizzi said.

While the high court issued a ruling applying to child-support cases in general, it did not reach a conclusion on the Feiock case itself. The high court majority, confused on how California courts handle contempt orders against non-paying parents, sent the case back to the appellate court in Santa Ana for further hearings.

The court's confusion revolved around the question of whether Feiock's case involved criminal or civil penalties, said Richard L. Schwartzberg, a Santa Ana attorney representing Feiock. Feiock was given a 25-day suspended jail sentence, placed on three years' probation and ordered to pay child support when a Superior Court judge in 1985 found him in contempt of an earlier child-support order.

Schwartzberg argued that the case involved criminal penalties because California judges are not required to let the non-paying parent out of jail even if he or she complies with a child-support order. In a civil proceeding, Schwartzberg argued, "the defendant carries the keys to the cell in his pocket" because he has to be released as soon as he makes restitution.

Capizzi maintained, however, that the sentence imposed on Feiock was civil in that it called for a "conditional" jail sentence that depended on whether the parent paid up or not.

"We're not interested in contributing to an overcrowded jail situation," Capizzi said. "We're interested in getting support for children. The jail sentence is the stick."

Feiock, speaking through his attorney, would not comment Wednesday. His estranged wife, Alta Sue Feiock, could not be reached at her home in Canton, Ohio.

After an eight-year marriage, the couple divorced in 1976. The mother was awarded custody of their three children, Douglas, now 18, Robert, now 17, and Jennifer, now 15, and the father was ordered to pay $35 per child per month in support. The support payments were soon ordered raised to $75 per child.

When her husband began missing payments, Alta Sue Feiock went to court in 1984 to enforce the child-support order. In an Orange County Superior Court hearing that year, Feiock testified that he could not afford to pay support because he had lost money on a failed hair salon venture and was barely making ends meet in a new flower shop enterprise.

"I would hope that I could pay the full amount and more if the business does well," Feiock told the court, according to a transcript of the proceedings. "If it doesn't, I don't know what I can do."

Asked by the court how much he could afford to pay, Feiock responded: "I don't know. I could say I'm going to do this and this, but my experience has been, after the hair salon, is not to be real overconfident about it. I hope to do well. And I think I'll do well.

Although the court lowered the payments to $50 per child, Feiock fell six months in arrears and was hauled back before a Superior Court judge in 1985 for non-payment. Feiock told the court that he had been unable to make the payments because his former partner in the flower shop had "unilaterally" dissolved their agreement and took $2,500 owed him. Feiock said then that he was attempting to run the business alone, sleeping in a garage or a van.

That is when he was sentenced, placed on probation and the case began wending its way through higher courts.

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