Opinion
SIMS, J.
Welfare and Institutions Code section 11350
and Civil Code section 248 allow a county to seek reimbursement from a noncustodial par
ent when public assistance is paid to support a child. Section 11350 limits the noncustodial parent’s liability to his or her “reasonable ability to pay” during the period aid was granted to the child. In this case, we conclude an unemployed parent’s reasonable ability to earn income from work may be considered in determining the parent’s “reasonable ability to pay.”
Defendant contends the trial court erred as a matter of law in ordering him to reimburse Yolo County for support paid for his child, because at all times defendant was unemployed and received his sole income from Sacramento County pursuant to a grant for aid to families with dependent children (AFDC). We disagree with defendant’s contention and shall affirm the judgment (order).
Factual and Procedural Background
On March 30, 1982, Yolo County filed a complaint under section 11350 and Civil Code section 248 to enforce defendant’s support obligation as a noncustodial parent.
The county sought a determination that defendant is the father of Florence H., a minor. The county also sought reimbursement for AFDC funds paid for the benefit of the minor, ongoing child support, attorney’s fees and court costs.
The action was bifurcated for trial. A jury found defendant to be the father of the minor, and judgment of paternity was entered thereafter. The support issues were then tried to the court without a jury.
The evidence showed that from September 1981 to 1984 Yolo County paid $6,117 in AFDC to a family unit that included defendant’s minor child.
Defendant testified he lived with his wife and their two children. During the period in question, defendant was continuously unemployed and received AFDC benefits from Sacramento County as an unemployed parent. He had sought employment as a truck driver or transportation dispatcher
but had not actively sought any other type of work. Defendant had no physical impairments or disabilities that might adversely affect his employability. He had participated in training programs.
The trial court ordered defendant to reimburse Yolo County $2,000 for aid paid from September 1981 through July 1984.
Defendant appeals from the order of reimbursement.
Discussion
I
Defendant contends the trial court could not order him to pay any reimbursement because at all relevant times defendant received an AFDC grant. The trial court found that at all times defendant was able to earn income from work sufficient to support the child.
An initial issue is whether section 11350
and Civil Code section 248
contemplate that the court could consider earning capacity as an appropriate factor in ordering reimbursement to the county.
Civil Code section 248 is part of the Uniform Civil Liability for Support Act. (Civ. Code, § 241 et seq., hereafter Uniform Act.) The Uniform Act creates private rights to enforce child support obligations. Receipt of public assistance operates as an assignment of these rights to the county by operation of law. (See § 11477
;
In re Marriage of Shore
(1977) 71 Cal.App.3d 290, 295 [139 Cal.Rptr. 349].) The county in effect steps into the shoes of the person entitled to enforce the support obligation (obligee). The county has the same rights as the obligee.
(Ibid.)
Civil Code section 246, subdivision (a) not only allows but requires a trial court to consider earning capacity in setting the amount of child support. That statute provides in pertinent part: “When determining the amount due for support, the court shall consider the following circumstances of the respective parties: [¶] (a) The earning capacity and needs of each party.
However, Civil Code section 248 subjects the county’s reimbursement rights to limitations otherwise imposed by law. One limitation is that found in section 11350: reimbursement is “limited by such parent’s reasonable ability to pay during that period in which aid was granted . . . .” (See fn. 5,
ante.)
However, this language does not preclude consideration of defendant’s earning capacity, because we conclude section 11350 itself contemplates that a parent’s reasonable ability to pay includes the reasonable ability to work and therefore earn funds to fulfill a support obligation.
We reach this conclusion for various reasons. First, the language of the statute necessarily implies it. The statute says in relevant part: “In making the determination of the defendant’s reasonable ability to pay attorney’s fees and court costs under this section, the court
shall be limited to
the following considerations: [¶] (a) The wealth and income of the defendant; [¶] (b)
The current ability of the defendant to earn;
[¶] (c) The age of the defendant.” (§ 11350, italics added; see fn. 5,
ante.)
Thus, for purposes of determining a parent’s liability for attorney’s fees and court costs, the statute expressly authorizes the court to consider a parent’s ability to earn income by working. However, ability to earn is one of three factors the court is “limited” to considering in determining liability for attorneys fees and costs. Since it is more important that parents pay support for their children than that they
pay court costs and attorney’s fees, section 11350 therefore implies and indeed compels the conclusion that the court may consider earning capacity, together with other undescribed factors, in determining a defendant’s reasonable ability to reimburse the county for support. This necessary implication is as much a part of the statute as that which is expressly stated.
(Welfare Rights Organization
v.
Crisan
(1983) 33 Cal.3d 766, 771 [190 Cal.Rptr. 919, 661 P.2d 1073, 31 A.L.R.4th 1214].)
A second reason for our conclusion is found in section 11350, subdivision (a), which allows a county to receive reimbursement based on existing child support orders. (See fn. 5, ante.) Support awards, authorized under various Civil Code provisions, frequently arise in marital dissolution cases. As noted, the Uniform Act (Civ. Code, § 246) specifically authorizes consideration of earning capacity. The Family Law Act at the time of defendant’s trial did not specify what factors could be considered in setting child support. (See Civ. Code, § 4700, subd. (a).)
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Opinion
SIMS, J.
Welfare and Institutions Code section 11350
and Civil Code section 248 allow a county to seek reimbursement from a noncustodial par
ent when public assistance is paid to support a child. Section 11350 limits the noncustodial parent’s liability to his or her “reasonable ability to pay” during the period aid was granted to the child. In this case, we conclude an unemployed parent’s reasonable ability to earn income from work may be considered in determining the parent’s “reasonable ability to pay.”
Defendant contends the trial court erred as a matter of law in ordering him to reimburse Yolo County for support paid for his child, because at all times defendant was unemployed and received his sole income from Sacramento County pursuant to a grant for aid to families with dependent children (AFDC). We disagree with defendant’s contention and shall affirm the judgment (order).
Factual and Procedural Background
On March 30, 1982, Yolo County filed a complaint under section 11350 and Civil Code section 248 to enforce defendant’s support obligation as a noncustodial parent.
The county sought a determination that defendant is the father of Florence H., a minor. The county also sought reimbursement for AFDC funds paid for the benefit of the minor, ongoing child support, attorney’s fees and court costs.
The action was bifurcated for trial. A jury found defendant to be the father of the minor, and judgment of paternity was entered thereafter. The support issues were then tried to the court without a jury.
The evidence showed that from September 1981 to 1984 Yolo County paid $6,117 in AFDC to a family unit that included defendant’s minor child.
Defendant testified he lived with his wife and their two children. During the period in question, defendant was continuously unemployed and received AFDC benefits from Sacramento County as an unemployed parent. He had sought employment as a truck driver or transportation dispatcher
but had not actively sought any other type of work. Defendant had no physical impairments or disabilities that might adversely affect his employability. He had participated in training programs.
The trial court ordered defendant to reimburse Yolo County $2,000 for aid paid from September 1981 through July 1984.
Defendant appeals from the order of reimbursement.
Discussion
I
Defendant contends the trial court could not order him to pay any reimbursement because at all relevant times defendant received an AFDC grant. The trial court found that at all times defendant was able to earn income from work sufficient to support the child.
An initial issue is whether section 11350
and Civil Code section 248
contemplate that the court could consider earning capacity as an appropriate factor in ordering reimbursement to the county.
Civil Code section 248 is part of the Uniform Civil Liability for Support Act. (Civ. Code, § 241 et seq., hereafter Uniform Act.) The Uniform Act creates private rights to enforce child support obligations. Receipt of public assistance operates as an assignment of these rights to the county by operation of law. (See § 11477
;
In re Marriage of Shore
(1977) 71 Cal.App.3d 290, 295 [139 Cal.Rptr. 349].) The county in effect steps into the shoes of the person entitled to enforce the support obligation (obligee). The county has the same rights as the obligee.
(Ibid.)
Civil Code section 246, subdivision (a) not only allows but requires a trial court to consider earning capacity in setting the amount of child support. That statute provides in pertinent part: “When determining the amount due for support, the court shall consider the following circumstances of the respective parties: [¶] (a) The earning capacity and needs of each party.
However, Civil Code section 248 subjects the county’s reimbursement rights to limitations otherwise imposed by law. One limitation is that found in section 11350: reimbursement is “limited by such parent’s reasonable ability to pay during that period in which aid was granted . . . .” (See fn. 5,
ante.)
However, this language does not preclude consideration of defendant’s earning capacity, because we conclude section 11350 itself contemplates that a parent’s reasonable ability to pay includes the reasonable ability to work and therefore earn funds to fulfill a support obligation.
We reach this conclusion for various reasons. First, the language of the statute necessarily implies it. The statute says in relevant part: “In making the determination of the defendant’s reasonable ability to pay attorney’s fees and court costs under this section, the court
shall be limited to
the following considerations: [¶] (a) The wealth and income of the defendant; [¶] (b)
The current ability of the defendant to earn;
[¶] (c) The age of the defendant.” (§ 11350, italics added; see fn. 5,
ante.)
Thus, for purposes of determining a parent’s liability for attorney’s fees and court costs, the statute expressly authorizes the court to consider a parent’s ability to earn income by working. However, ability to earn is one of three factors the court is “limited” to considering in determining liability for attorneys fees and costs. Since it is more important that parents pay support for their children than that they
pay court costs and attorney’s fees, section 11350 therefore implies and indeed compels the conclusion that the court may consider earning capacity, together with other undescribed factors, in determining a defendant’s reasonable ability to reimburse the county for support. This necessary implication is as much a part of the statute as that which is expressly stated.
(Welfare Rights Organization
v.
Crisan
(1983) 33 Cal.3d 766, 771 [190 Cal.Rptr. 919, 661 P.2d 1073, 31 A.L.R.4th 1214].)
A second reason for our conclusion is found in section 11350, subdivision (a), which allows a county to receive reimbursement based on existing child support orders. (See fn. 5, ante.) Support awards, authorized under various Civil Code provisions, frequently arise in marital dissolution cases. As noted, the Uniform Act (Civ. Code, § 246) specifically authorizes consideration of earning capacity. The Family Law Act at the time of defendant’s trial did not specify what factors could be considered in setting child support. (See Civ. Code, § 4700, subd. (a).)
However, courts in marital dissolution cases have long considered earning capacity in determining child support obligations, at least where there is evidence of avoidance of support obligations by failure to seek gainful employment.
(In re Marriage of Flaherty, supra,
31 Cal.3d at p. 642 [Civ. Code, § 196];
Pencovic
v.
Pencovic
(1955) 45 Cal.2d 97 [287 P.2d 501] [former Civ. Code, §§ 4801, 4700];
In re Marriage of Williams
(1984) 155 Cal.App.3d 57, 62 [202 Cal.Rptr. 10];
In re Marriage of Johnson
(1982) 134 Cal.App.3d 148, 156 [184 Cal.Rptr. 444] [Civ. Code, §§4801, 4700].) Consequently, section 11350, subdivision (a) allows reimbursement to a county based on a court order which, in turn, may be premised upon an ability to earn income from work. No reason exists why a parent’s ability to earn income should not be considered in determining county’s reimbursement rights under subdivision (b) of the same statute.
A third reason for our conclusion is found in section 11476.1. That statute, inter alia, allows the district attorney to enter into agreements for entry of judgment with noncustodial parents for child support where the district attorney has undertaken enforcement of support. Subdivision (g) of section 11476.1 provides, “For the purposes of this section, in making a determination of the noncustodial parent’s reasonable ability to pay, any relevant circumstances set out in section 246 of the Civil Code shall be considered.” Since, as we have seen, subdivision (a) of Civil Code section 246 requires the court to consider earning capacity, that factor is appropriately considered under section 11476.1. It would be anomalous to allow earning capacity to be considered where judgment is entered by agreement but not where
judgment is entered following trial. Statutes relating to the same subject matter are to be construed together and harmonized if possible.
(County of Placer
v.
Aetna Cas. etc. Co.
(1958) 50 Cal.2d 182, 188-189 [323 P.2d 753].)
Another reason for our conclusion is that the statute originally conditioned a county’s rights on a determination “that the parent of a recipient has been gainfully employed or has had sufficient assets to enable him to reasonably assist the recipient . . . .”
The Legislature eliminated the requirement of gainful employment in the Welfare Reform Act of 1971.
‘“It is ordinarily to be presumed that the Legislature by deleting an express provision of a statute intended a substantial change in the law.’”
(People
v.
Dillon
(1983) 34 Cal.3d 441, 467 [194 Cal.Rptr. 390, 668 P.2d 697], quoting
People
v.
Valentine
(1946) 28 Cal.2d 121, 142 [169 P.2d 1].) These changes compel the conclusion that actual gainful employment is no longer a requirement and that reasonable ability to pay support includes the
ability
to earn from work.
Our interpretation of section 11350 is also consistent with legislative and public policy. “[E]nforcement of child support rights involves not only a matter of private or local concern, but poses an important question for the federal and state governments as well.”
(In re Marriage of Shore, supra,
71 Cal.App.3d at p. 295.) AFDC is administered under a federally ap
proved state plan. (42 U.S.C. § 601 et seq.; Welf. & Inst. Code, § 10600.) All federal-state welfare programs are administered pursuant to federal as well as state law. (See, e.g.,
Del Costello
v.
State of California
(1982) 135 Cal.App.3d 887, 891 [185 Cal.Rptr. 582];
In re Marriage of Simmons
(1977) 72 Cal.App.3d 205, 208 [139 Cal.Rptr. 832].) Federal law requires that states enforce parental support obligations or face a reduction in federal funding of their AFDC programs.
(County of Santa Clara
v.
Support, Inc.
(1979) 89 Cal.App.3d 687, 695 [152 Cal.Rptr. 754] [citing 42 U.S.C. § 603(h)].) “[T]he primary reason underlying the public enforcement of support rights is to insure that the moneys disbursed by the county for the aid of a needy child be returned to the public source from which they were disbursed.”
{In re Marriage of Shore, supra,
71 Cal.App.3d atp. 298.) We can think of no reason why parents who are able to earn sufficient income should not reimburse the public treasury for the support of their children.
The trial court properly considered defendant’s ability to earn income by working in determining his reimbursement obligation. ^
II
Defendant also contends a noncustodial parent who receives public assistance cannot be found to have a reasonable ability to work or pay child support as a matter of law.
Defendant argues the trial court’s orders directing him to reimburse the county and pay continuing support violate section 11002,
which makes
public assistance absolutely inalienable and section 11005.5,
which prohibits the use of public assistance for the benefit of others. In addition, although not cited by defendant, section 11350.2
proscribes the use of public assistance to satisfy a support obligation.
However, these statutes are not implicated in the order of the trial court. The court’s reimbursement order is premised not upon defendant’s receipt of AFDC but rather upon the factual finding that defendant had the ability to work and earn funds sufficient to pay support in the amount for which reimbursement was ordered. Although the cited statutes undoubtedly prohibit Yolo County from attaching, garnishing or executing upon defendant’s AFDC grant (see Code Civ. Proc., §§ 703.070, subd. (a), 704.170), the record contains no indication the county has tried to do so.
The trial court properly found defendant had a reasonable ability to pay Yolo County for its support of his child even though he was receiving AFDC from Sacramento County.
(See
In re Marriage of Flaherty, supra,
31 Cal.3d at p. 645.)
Disposition
The (judgment) order appealed from is affirmed.
Puglia, P. J., and Regan, J., concurred.