Retroactive Child Support Beyond the Date of Filing the Motion

In Barron, the State of Ohio paid public assistance for the benefit of the defendant's child from 1991. On September 20, 1994, the Family Support Division of Fresno County's District Attorney's Office, at Ohio's request, filed an order to show cause seeking an order of paternity, current child support, and reimbursement of public assistance paid for the defendant's child. Following DNA (deoxyribonucleic acid) blood testing, on March 27, 1995, the defendant admitted paternity and agreed to pay prospective support, as well as arrearages equal to the amount actually paid in Aid to Families With Dependent Children (AFDC) to the mother since November 1991. However, the defendant claimed that the mother had only received AFDC until October 1992 and thus he should not be liable for any child support from October of 1992 to November 14, 1994, which was the date of the filing of the order to show cause. The court disagreed and ordered the defendant to pay support arrearages from September 20, 1991, to November 13, 1994. ( State of Ohio v. Barron, supra, 52 Cal. App. 4th 62, 66.) On appeal, the defendant claimed former section 11350 was unconstitutional because it "singles him out as a noncustodial parent whose child received Aid to Families With Dependent Children for different treatment than a noncustodial parent whose child has not received Aid to Families With Dependent Children without any rational basis for doing so. He based this claim on the fact an original order for child support cannot be made retroactive beyond the date of filing of a notice of motion or order to show cause. In contrast, section 11350, subdivision (a)(2) authorizes retroactive application of a support order for the entire period the noncustodial parent is separated from the child, limited only by the three-year statute of limitations." ( State of Ohio v. Barron, supra, 52 Cal. App. 4th 62, 66-67.) "California has chosen to participate in the Aid to Families With Dependent Children program. ( 11200 et seq.) The Department of Social Services has been designated to ensure the state program is in compliance with all provisions of applicable state and federal law. ( 10600.) The Legislature has enacted a statutory scheme for collection and enforcement of child support to ensure compliance with federal law. It established statewide uniform guidelines for child support for the express purpose of ensuring 'that this state remains in compliance with federal regulations for child support guidelines.' (Fam. Code, 4050.) Those guidelines are set out in Family Code section 4055. Consequently, this is the formula a court would use to compute the amount of support a noncustodial parent must provide under either subdivision (a)(1) or (2) of section 11350." ( State of Ohio v. Barron, supra, 52 Cal. App. 4th 62, 70-72.) The Barron court rejected the defendant's constitutional challenge to former section 11350. However, the defendant in Barron was not the first parent to attack the constitutionality of former section 11350 on grounds that it violates his right to equal protection. In City and County of San Francisco v. Thompson (1985) 172 Cal. App. 3d 652 [218 Cal. Rptr. 445], the court found that "there is a rational basis upon which the Legislature has chosen to impose upon noncustodial parents liability for public assistance benefits paid prior to issuance of an order of child support." ( Id., at p. 659.) First, the court noted the goal of "relieving the public of the economic burden of support for the impoverished is a legitimate state purpose." ( Id., at p. 658.) Next, it found "the state has a legitimate interest in maximizing the benefit payments it can make to all needy children." ( Id., at p. 659.) Concluding that former section 11350 was tailored to achieve these goals, the Thompson court observed, "Although the state has a motive to seek a declaration of paternity, the practical realities of bringing that action will often mean that the paternity determination is not or cannot be made promptly. The state, however, assumes the obligation to deliver benefits as soon as it finds the child eligible to receive them. by enacting section 11350 the Legislature has chosen to commence the noncustodial parent's liability for child support with the grant of benefits rather than with the issuance of a support order." ( City and County of San Francisco v. Thompson, supra, 172 Cal. App. 3d 652, 659.) In In re Marriage of Hyon & Kirschner (1991) 231 Cal. App. 3d 449, 454 [282 Cal. Rptr. 408], our colleagues in the Second District stated, "Absent a preexisting support order, respondent's liability for state-furnished support commenced with the payment of AFDC benefits[, subject only to] two significant limitations[, namely, the three-year statute of limitations and the noncustodial parent's reasonable ability to pay.]" (See also County of Alameda v. Johnson (1994) 28 Cal. App. 4th 259, 263 [33 Cal. Rptr. 2d 483] ["Legislature intended that [defendant] must pay to the county all sums that he could have been ordered to pay for [his daughter's] support, not just the AFDC payments that were actually made to her family on her behalf"]; County of Orange v. Dabbs (1994) 29 Cal. App. 4th 999, 1005 [35 Cal. Rptr. 2d 79] [defendant was obligated to pay child support arrearages based on the child support guidelines].) As the above mentioned cases demonstrate, "section 11350 [does] nothing more than conform the California child support recovery scheme with federal law and regulations, to ensure continued access to a federal program that benefits all the citizens of the state. Thus, there is a rational basis for treating defendant differently from those parents whose children the state does not support." ( State of Ohio v. Barron, supra, 52 Cal. App. 4th 62, 76.)