CULLINS v. TREHARNE

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Court of Appeal, Second District, Division 4, California.

La Shawn Cariel CULLINS, et al., Plaintiffs and Appellants, v. Gordon W. TREHARNE, and County of Los Angeles, Defendant and Respondent.

Civ. 68546.

Decided: November 10, 1983

William T. Brandlin, Los Angeles, for plaintiffs and appellants. Robert H. Philibosian, Donald J. Kaplan, and Sterling S. Suga, Los Angeles, for defendant and respondent.

La Shawn Cullins is the legitimate daughter of Carol Ann Cullins.   On September 18, 1970, in a dissolution proceeding, Carol's husband, La Shawn's father, was ordered to pay a pro forma spousal support of $1.00 and $35.00 per week for support of La Shawn.   Except for the first payment of $35.00, no payments were ever made pursuant to that order.   On February 14, 1980, the father died.   Carol filed a claim in his estate which claim, after suit was brought on it, resulted in a judgment for $26,800.   From that amount, plaintiff's attorney was directed to hold $8,583.30 pending determination of the claim of the county to reimbursement for AFDC payments made by it to Carol.   Ultimately, the trial court made the order herein involved, which held that the county was entitled to the full $8,583.30.

La Shawn and Carol have appealed from that order.   We reverse.

It is admitted that, on her application, the county did pay to Carol the amount herein involved pursuant to the so-called “Aid to Families of Dependent Children” statutes.   Those statutes provide that, in consideration of payments under that scheme, there is an automatic assignment to the county.   The issue here is whether the assignment is of the full AFDC payment or only of the part thereof paid for child (as distinguished from spousal) support.   The governing statute (subd. (a) of § 11477 of the Welf. & Inst.Code) reads as follows:

“Assign to the county any rights to support from any other person such applicant may have in their own behalf or in behalf of any other family member for whom the applicant is applying for or receiving aid, and which have accrued at the time such assignment is made.   Receipt of public assistance under this chapter shall operate as an assignment of operation of law.   An assignment of support rights to the county shall also constitute an assignment to the state.”

Testimony from the county official in charge of the program was to the effect that the county made a “block” grant, per month, to the mother without any segregation of how much was for the child and how much was for the mother.

 We know of no case that directly deals with the issue here presented.   However, by dicta, in County of Fresno v. Walker (1981) 115 Cal.App.3d 814, 171 Cal.Rptr. 572, the court said, at page 825, 171 Cal.Rptr. 572:

“As a matter of public interest, we also comment on another aspect of the present case.   Section 208.5 explicitly states, ‘The father or mother of a minor child shall not be liable for the support of a child of such minor child.’   In spite of this limitation, appellant county presented no itemization of which costs were attributable to Renee and which expenditures were necessary for the support of the unborn child.   Instead, the evidence showed that the family support division merely allocated costs on a 50/50 basis because there were two referrals (i.e., one for Renee and one for the unborn child).   Reliance on the 50/50 administrative practice of the family support division may incorrectly result in excessive reimbursements in future cases.   We therefore express our belief that the county should bear the burden of presenting a precise breakdown of what expenses are necessary to support a minor child (rather than the child of a minor child) in future proceedings where reimbursement is properly due from a minor's parent.   This allocation of the burden of proof will insure that reimbursement payments are determined in a fair manner.”

 We agree with that statement.   The statutory assignment is only of the child support.   Admittedly, the custodial parent is entitled to some compensation for acting as caretaker, but that compensation will not necessarily amount to the full county payment.   The county is, so far as this proceeding is concerned, the party seeking recovery.   The burden was on it to show how much of the $8,583.30 was attributable to the care and support of La Shawn.   It failed to do so.   Not having met its burden of proof, it cannot recover.

The order (judgment) appealed from is reversed.

KINGSLEY, Associate Justice.

WOODS, P.J., and McCLOSKY, J., concur.

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