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Court of Appeal, Sixth District, California.

MONTEREY COUNTY, Plaintiff and Appellant, v. Robin Joseph CORNEJO, Defendant and Respondent.

No. H005612.

Decided: January 26, 1990

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Morris Beatus and Josanna Berkow, Deputy Attys. Gen., San Francisco, for plaintiff and appellant. Robert J. Pitman, John Viljoen and Segretti, Pitman & Erdbacher, Salinas, for defendant and respondent.

In a proceeding brought by the District Attorney of Monterey County to modify a child support order, the trial court awarded to the noncustodial father the dependency deduction for federal and state tax purposes.   The district attorney appeals, contending the order was outside the jurisdiction of the court.

We affirm.


Respondent Robin Joseph Cornejo fathered a son who was born on September 17, 1980.   In April 1980, the District Attorney of Monterey County filed a complaint on behalf of mother and child for child support and reimbursement for public assistance.   Respondent, who was not married to the mother, acknowledged paternity and agreed to pay support.   There were two subsequent upward modifications of the support order and a determination of arrearages.   Finally, in December 1988, the district attorney again sought an increase and determination of arrearages.   The county and respondent agreed on the amounts of both increased ongoing support and arrearages.   However, respondent also sought to claim the minor child as a dependent for federal and state income tax purposes.  (26 U.S.C.A. § 152(a)(1);  Rev. & Tax Code, § 17054, subd. (d)(3)(A).)   This was the only issue before the trial court, which allocated to respondent the right to claim the deduction until further order of the court.   This appeal ensued.


Appellant Monterey County asserts that this ruling exceeded the court's jurisdiction.   The district attorney had proceeded under Welfare and Institutions Code section 11350.1, which provides in pertinent part:  “in any action brought by the district attorney for child support of a minor child or children, the action may be prosecuted in the name of the county on behalf of the child․  The mother shall not be a necessary party in the action but may be subpoenaed as a witness.   In an action under this section ․ the issues shall be limited strictly to the question of paternity, if applicable, and child support.” 1

Appellant contends that the plain meaning of the statute limits the triable issues to paternity and child support.   Furthermore, the streamlined procedures established in section 11350.1 reflect a strong state policy to maximize benefits for children without increasing the public's economic burden.   Finally, the prohibition of the adjudication of collateral issues in such proceedings is well established in case law.


 An appellate court presumes that the judgment or order appealed from was correctly decided by the trial court.  (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, 86 Cal.Rptr. 65, 468 P.2d 193.)  “The task of this court is to determine whether the judgment is correct upon any theory of law, regardless of the consideration which may have moved the trial court to its conclusion.   [Citation.]”  (State of Washington ex rel. Burton v. Leyser (1987) 196 Cal.App.3d 451, 455, 241 Cal.Rptr. 812.)


 Appellant contends that allocating the right to claim the tax deduction was improper because the court's jurisdiction was limited to paternity and child support issues, and the allocation was neither.

Two California cases have considered the issue, which arose in other contexts.   In In re Marriage of Ryall (1984) 154 Cal.App.3d 743, 755–756, 201 Cal.Rptr. 504, a California court was asked to enforce a support order by a Florida court under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA) codified in Code of Civil Procedure sections 1650 through 1699.   After a hearing on an action which the Kern County District Attorney brought on behalf of the wife who remained in Florida, the California court ordered, among other things, that the right to claim the tax deduction for the children based on child support payments should be awarded to the father.   The Court of Appeal reversed, since a proceeding under the act was framed for the single purpose of enforcing a child support obligation, and did not lend itself to the litigation of tax matters.  “The scope of RURESA is limited to the enforcement of past and present support obligations previously established in a foreign court.”  (In re Marriage of Ryall, supra, 154 Cal.App.3d at p. 748, 201 Cal.Rptr. 504.)

The trial court was found to have jurisdiction, however, in In re Marriage of Neal (1979) 92 Cal.App.3d 834, 847, 155 Cal.Rptr. 157.  Neal involved a petition for dissolution, in which both parents were parties and in which the issues of custody and child support were litigated.   Neither party had requested, but the court ordered, that the father “shall claim the two minor children as dependents for income tax purposes.”  (Ibid.)  The appellate court found the order properly made.

“ ‘A party is entitled to “any and all relief which may be appropriate under the scope of his pleadings and within the facts alleged and proved, irrespective of the theory upon which they might be alleged.”  [Citations.]’  [Citations.]   The present parties raised the issue of child support in the pleadings and in the extensive pretrial proceedings․  ‘Circumstances to be considered by the trial judge in awarding ․ child support are the needs of the parties and the ability to meet those needs, including property owned, obligations to be met, ability to earn and actual earnings.’  [Citation.]  [The father's] income tax liability was an ‘obligation to be met’ which was subject to consideration by the court.   In all events, the issue of child support was contested throughout the proceedings.   There is accordingly no merit to the contention that the trial court exceeded its jurisdiction in making the ․ order on that issue.  [Citation.]”  (In re Marriage of Neal, supra, 92 Cal.App.3d at p. 847, 155 Cal.Rptr. 157.)

In the instant case, it is true that section 11350.1 limits the triable issues to paternity and child support.   However, in determining what the Legislature meant by “child support,” we look to the rest of the statutory scheme.

Section 11476.1, subdivision (g), directs that in determining the noncustodial parent's reasonable ability to pay, any relevant circumstances set out in Civil Code section 246 may be considered.  Civil Code section 246 requires the court to consider (among other circumstances) the earning capacity and needs of each party (subd. (a)), the obligations and assets of each (subd. (b)), and any other factors which it deems just and equitable (subd. (h)).  Therefore, as Neal teaches, the parents' income tax liability is pertinent.

In addition, the extent of the modification a court may make is not limited to determining an amount or a payee.   Section 11476.1, subdivision (f), allows modification of an order of support as provided in Civil Code section 4700.  Civil Code section 4700 allows modification “as the court may deem necessary” except as to accrued amounts.   Furthermore, Civil Code section 196a empowers the court to order and enforce performance of its judgment and orders in the same way as in a suit for dissolution of marriage.   Consequently, we hold that the court had jurisdiction to include an order awarding the right to claim the tax deduction.


 However, we must also consider the district attorney's argument that the mother was not a party to the proceedings, and therefore had no opportunity to be heard.   Due process requires that a person shall receive notice and have an opportunity to be heard by a court of competent jurisdiction on a matter which affects his or her interest.  (Cal. Const., art. 1, § 7;  Datta v. Staab (1959) 173 Cal.App.2d 613, 622, 343 P.2d 977.)

In the declaration of the deputy district attorney bringing the motion for modification, it was asserted that “[t]he District Attorney is appearing in this case in the manner provided for by law.”

Law, specifically section 11475.1, directs the district attorney to enforce the support obligation when the child is receiving public assistance (which was not the situation when the 1988 motion was filed), and “when requested to do so by the individual on whose behalf the enforcement efforts will be made when the child is not receiving public assistance[.]”  (See Stats.1987, ch. 948, § 3, No. 9 West's Cal.Legis.Service, p. 1049, in effect at the commencement of this proceeding.)   In addition, section 11476 instructs the district attorney to continue to enforce support payments from the noncustodial parent of a family which has stopped receiving public assistance until the individual on whose behalf the enforcement efforts are made sends written notice to the district attorney requesting the enforcement services be discontinued.

Finally, section 11476.1, subdivision (a), authorizes a district attorney who has undertaken enforcement of support to reach a settlement on the issues of support or paternity with the noncustodial parent.

In the instant case, the district attorney was acting on behalf of an individual who was no longer receiving public assistance, and for whom enforcement efforts were being made at her request.  (The record reflects that she made a specific request for a motion to modify in 1983.   There is no indication what prompted the instant motion.)

The issue before the court, namely, the support of a minor child, was authorized by statute.  Civil Code section 196, subdivision (a), declares that the father and mother of a child have an equal responsibility to support and educate their child in the manner suitable to the child's circumstances, taking into consideration the respective earnings or earning capacities of the parents.   The subissue of the tax deduction, as we have discussed ante, is included in the issue of child support.

The evidence before the court was authorized by law.   The evidence, required from both parents, was relevant on the issue of the tax deduction.   It included marital status, number of dependents, employment, income, obligations, and withholding and other tax information.

The question was not unduly complex.   Both parents were single.   Both had incomes limited to wages or commissions.   The only dependent involved was the son.   Neither parent appeared to have significant medical expenses.   Moreover, both counsel had notice that respondent was requesting the allocation of the deduction.   The mother had an opportunity to present evidence:  she provided the income and expense declaration adopted by California Rules of Court, rule 1285.50, and a paycheck stub.   And she had an opportunity to be heard:  the deputy district attorney submitted written points and authorities in opposition to the award, and argued the matter to the court.

As appellant pointed out, the evident purpose of legislation authorizing the district attorney to bring an action for child support is to provide a streamlined procedure for the county to recoup public assistance, and to assist parents with limited resources to enforce the support obligation so as not to once again require public funds.

Mindful of the beneficial effects of judicial economy on the public purse, we see no reason why a court rendering judgment on a child support matter, with the pertinent information before it, may not include in its order an award of the right to claim the dependency deduction.  “[T]he custodial parent is given a new bargaining chip [by 26 U.S.C.A. § 152] that, depending upon the economic circumstances, may be of significant value.   Furthermore, when the dependency exemption is allocated to the non-custodial parent on a year-to-year basis the custodial parent must sign a waiver to allow the non-custodial parent to take the exemption.   This simple mechanical requirement provides the custodial parent with an opportunity to collect back support payments every April 15th.   In light of the low level of compliance with alimony and child support awards, this scheme hardly seems ill-conceived from points of view other than the IRS's.”  (Cross v. Cross (W.Va.1987) 363 S.E.2d 449, 459.)

Finally, we note that if a court determines that the evidence before it is insufficient to support a decision, or if the issue involves collateral matters, the court may deny the order and leave the parties to an independent action under the Family Law Act.  (See County of San Joaquin v. Woods (1989) 210 Cal.App.3d 56, 61, 258 Cal.Rptr. 110.)


The judgment is affirmed.


1.   Further statutory references are to the Welfare and Institutions Code unless otherwise stated.

PREMO, Acting Presiding Justice.

COTTLE and ELIA, JJ., concur.

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