[79]*79Opinion
BARROW, J.
This appeal is from a review of an administrative agency decision by the Circuit Court of Greene County. It arises out of an assessment by the Virginia Department of Social Services (the “Department”) against a father for past public assistance paid for the benefit of his child. Clyde Morris, appellant, contends that he was denied due process of law because he was not given notice that public assistance was being paid for the benefit of his child, that the trial court erred in concluding that the Commonwealth’s claim was not barred by laches, and, finally, that the trial court erred in using the guidelines contained in Code § 20-108.2 to determine the amount he is required to reimburse the Commonwealth for public assistance paid prior to the adoption of these guidelines. We conclude that due process of law does not require that a responsible parent receive notice of the proposed payment of public assistance prior to its being paid so long as he receives notice and is given an opportunity to be heard before a final assessment is made against him. We further conclude that the doctrine of laches is unavailable to the appellant in this case since the doctrine may not be set up as a defense against the Commonwealth acting in its governmental capacity. However, we conclude that the trial court erred in using the guidelines contained in Code § 20-108.2 to determine the appellant’s obligation for years occurring prior to the adoption of these guidelines.
The appellant’s child was born during the appellant’s marriage to the child’s mother. The appellant and the child’s mother separated in 1972, and the appellant had no contact with either the child or his mother from 1972 through 1983.
The appellant was incarcerated in 1983, at which time the child’s mother applied for Aid to Dependent Children (“ADC”) and listed the appellant’s address as the Joint Security Complex in Charlottesville, Virginia. The appellant was released from incarceration in November, 1986. However, it was not until September 5, 1989 that he received notice of a debt from the Department assessing him $8,008 as provided for in an administrative order as required by statute. See Code § 63.1-252.1. The order stated that the appellant was responsible for ADC paid on behalf of his child from March 1, 1983 to June 30, 1988. The appellant contested the order and was given an administrative hearing, which resulted in the debt being reduced to $4,160 by the Bureau of Child Sup[80]*80port Enforcement. The Juvenile and Domestic Relations District Court dismissed the appellant’s appeal of the decision, and the Circuit Court also dismissed his appeal and affirmed the order requiring him to pay this debt.1
In Virginia, any public assistance paid for the benefit of a dependant child creates a debt due and owing to the Department by the person who is responsible for support of that child. Code § 63.1-251. In the absence of a court order or divorce decree fixing the amount of child support due, the Commissioner of the Department may proceed against the responsible person “whose support debt has accrued or is accruing.” Code § 63.1-252.1. The Commissioner is required to initiate such proceedings “by issuing notice containing the administrative support order which shall become effective unless timely contested.” Id. The responsible parent has ten days to file an answer to the notice and, upon doing so, is given the right to an administrative hearing on the matter. Id.
Due Process of Law
In September, 1989, the appellant received an administrative order determining that a debt for ADC payments made for the benefit of his child had accrued between March, 1983 and June, 1988. The appellant argues that, since the debt became “due and owing” as soon as public assistance was paid, notice of the debt six and one-half years after it began accruing is insufficient notice. He contends that, to satisfy due process requirements, he should have been notified of his potential liability before the debt began accruing.
The constitutionality of the notice requirements of Code § 63.1-252.1 is a question of first impression in Virginia. Other states, however, have addressed due process challenges to similar statutory schemes.
In this case, the trial court relied on Mallatt v. Luihn, 206 Or. 678, 294 P.2d 871 (1956), in finding that the notice requirements of the Virginia statute satisfy due process. In Mallatt, the appellant was notified by the state in September, 1953, of her liability for public assistance payments made to her parents during the calendar year 1952. Id. at 685, 294 P.2d at 875. The appellant con[81]*81tended that “the enforcement of [her] liability in an action at law without a previous administrative hearing is a deprivation of property without due process of law.” Id. at 692, 294 P.2d at 878. The Oregon Supreme Court disagreed, holding that since the statute requires notice of a hearing and an opportunity to be heard before liability becomes final, the procedure for recovering public assistance payments from responsible relatives complies with the requirement of due process. Id. at 696, 294 P.2d at 879.
The Commonwealth, in arguing the constitutionality of the Virginia scheme, cites State v. Dionne, 557 A.2d 653 (N.H. 1989). In Dionne, the state sought to recover from the defendant AFDC payments made for the benefit of the defendant’s child. Id. at 654. The payments on the child’s behalf began in May, 1987, and the defendant was notified of his liability in November, 1987. Id. The trial court denied reimbursement for any amount paid prior to November, 1987. Id. The New Hampshire Supreme Court reversed, holding that “ ‘notice is timely if it allows the defendant an opportunity to dispute his relationship to the recipient of the assistance, to contest the amount of debt, and to contest any claim for actual repayment before a reimbursement order is entered against him.’” Id. at 655 (quoting Clarke v. Clarke, 517 A.2d 816, 818 (N.H. 1986)). This holding was based on the court’s finding that no discretionary judgment is involved in a state’s determination to make AFDC payment for “ ‘the basic necessities of [a] child’s survival.’ ” Id. (quoting Clarke, 517 A.2d at 818).
Two jurisdictions have reached an opposite result on this issue. In Gresham v. Department of Human Resources, 257 Ga. 747, 363 S.E.2d 544 (1988), the court held that the state was prohibited “from recovering public assistance payments made on [a] child’s behalf prior to the defendant’s first receiving notice of the department’s intent to hold him liable.” Id. at 748, 363 S.E.2d at 545. This rule applies “where the nonpaying parent’s address is known or can be ascertained.” Id. at 749, 363 S.E.2d at 546. The court stated two reasons for its holding: (1) “so that such parents may contest eligibility for AFDC payments or keep records of the support they in fact are providing,” and (2) failure to provide notice of liability before it accrues “could render the state’s right of recovery unconstitutional for lack of notice and due process.” Id.
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[79]*79Opinion
BARROW, J.
This appeal is from a review of an administrative agency decision by the Circuit Court of Greene County. It arises out of an assessment by the Virginia Department of Social Services (the “Department”) against a father for past public assistance paid for the benefit of his child. Clyde Morris, appellant, contends that he was denied due process of law because he was not given notice that public assistance was being paid for the benefit of his child, that the trial court erred in concluding that the Commonwealth’s claim was not barred by laches, and, finally, that the trial court erred in using the guidelines contained in Code § 20-108.2 to determine the amount he is required to reimburse the Commonwealth for public assistance paid prior to the adoption of these guidelines. We conclude that due process of law does not require that a responsible parent receive notice of the proposed payment of public assistance prior to its being paid so long as he receives notice and is given an opportunity to be heard before a final assessment is made against him. We further conclude that the doctrine of laches is unavailable to the appellant in this case since the doctrine may not be set up as a defense against the Commonwealth acting in its governmental capacity. However, we conclude that the trial court erred in using the guidelines contained in Code § 20-108.2 to determine the appellant’s obligation for years occurring prior to the adoption of these guidelines.
The appellant’s child was born during the appellant’s marriage to the child’s mother. The appellant and the child’s mother separated in 1972, and the appellant had no contact with either the child or his mother from 1972 through 1983.
The appellant was incarcerated in 1983, at which time the child’s mother applied for Aid to Dependent Children (“ADC”) and listed the appellant’s address as the Joint Security Complex in Charlottesville, Virginia. The appellant was released from incarceration in November, 1986. However, it was not until September 5, 1989 that he received notice of a debt from the Department assessing him $8,008 as provided for in an administrative order as required by statute. See Code § 63.1-252.1. The order stated that the appellant was responsible for ADC paid on behalf of his child from March 1, 1983 to June 30, 1988. The appellant contested the order and was given an administrative hearing, which resulted in the debt being reduced to $4,160 by the Bureau of Child Sup[80]*80port Enforcement. The Juvenile and Domestic Relations District Court dismissed the appellant’s appeal of the decision, and the Circuit Court also dismissed his appeal and affirmed the order requiring him to pay this debt.1
In Virginia, any public assistance paid for the benefit of a dependant child creates a debt due and owing to the Department by the person who is responsible for support of that child. Code § 63.1-251. In the absence of a court order or divorce decree fixing the amount of child support due, the Commissioner of the Department may proceed against the responsible person “whose support debt has accrued or is accruing.” Code § 63.1-252.1. The Commissioner is required to initiate such proceedings “by issuing notice containing the administrative support order which shall become effective unless timely contested.” Id. The responsible parent has ten days to file an answer to the notice and, upon doing so, is given the right to an administrative hearing on the matter. Id.
Due Process of Law
In September, 1989, the appellant received an administrative order determining that a debt for ADC payments made for the benefit of his child had accrued between March, 1983 and June, 1988. The appellant argues that, since the debt became “due and owing” as soon as public assistance was paid, notice of the debt six and one-half years after it began accruing is insufficient notice. He contends that, to satisfy due process requirements, he should have been notified of his potential liability before the debt began accruing.
The constitutionality of the notice requirements of Code § 63.1-252.1 is a question of first impression in Virginia. Other states, however, have addressed due process challenges to similar statutory schemes.
In this case, the trial court relied on Mallatt v. Luihn, 206 Or. 678, 294 P.2d 871 (1956), in finding that the notice requirements of the Virginia statute satisfy due process. In Mallatt, the appellant was notified by the state in September, 1953, of her liability for public assistance payments made to her parents during the calendar year 1952. Id. at 685, 294 P.2d at 875. The appellant con[81]*81tended that “the enforcement of [her] liability in an action at law without a previous administrative hearing is a deprivation of property without due process of law.” Id. at 692, 294 P.2d at 878. The Oregon Supreme Court disagreed, holding that since the statute requires notice of a hearing and an opportunity to be heard before liability becomes final, the procedure for recovering public assistance payments from responsible relatives complies with the requirement of due process. Id. at 696, 294 P.2d at 879.
The Commonwealth, in arguing the constitutionality of the Virginia scheme, cites State v. Dionne, 557 A.2d 653 (N.H. 1989). In Dionne, the state sought to recover from the defendant AFDC payments made for the benefit of the defendant’s child. Id. at 654. The payments on the child’s behalf began in May, 1987, and the defendant was notified of his liability in November, 1987. Id. The trial court denied reimbursement for any amount paid prior to November, 1987. Id. The New Hampshire Supreme Court reversed, holding that “ ‘notice is timely if it allows the defendant an opportunity to dispute his relationship to the recipient of the assistance, to contest the amount of debt, and to contest any claim for actual repayment before a reimbursement order is entered against him.’” Id. at 655 (quoting Clarke v. Clarke, 517 A.2d 816, 818 (N.H. 1986)). This holding was based on the court’s finding that no discretionary judgment is involved in a state’s determination to make AFDC payment for “ ‘the basic necessities of [a] child’s survival.’ ” Id. (quoting Clarke, 517 A.2d at 818).
Two jurisdictions have reached an opposite result on this issue. In Gresham v. Department of Human Resources, 257 Ga. 747, 363 S.E.2d 544 (1988), the court held that the state was prohibited “from recovering public assistance payments made on [a] child’s behalf prior to the defendant’s first receiving notice of the department’s intent to hold him liable.” Id. at 748, 363 S.E.2d at 545. This rule applies “where the nonpaying parent’s address is known or can be ascertained.” Id. at 749, 363 S.E.2d at 546. The court stated two reasons for its holding: (1) “so that such parents may contest eligibility for AFDC payments or keep records of the support they in fact are providing,” and (2) failure to provide notice of liability before it accrues “could render the state’s right of recovery unconstitutional for lack of notice and due process.” Id. at 750, 363 S.E.2d at 546. See also Burns v. Swinney, 252 Ga. 461, 314 S.E.2d 440 (1984) (upon which Gresham relies).
[82]*82Similarly, in Baker v. Department of Health & Rehabilitative Services, 526 So. 2d 1057 (Fla. Dist. Ct. App. 1988), where the state of Virginia initiated proceedings under URESA to recover from a Florida resident AFDC payments made for the benefit of her child who lived with her mother in Virginia, the court remanded the case for an evidentiary hearing to determine whether the appellant knew that the AFDC payments were being made. Id. at 1059. If, on remand, the trial court found that the appellant “had no knowledge of those payments, then no award requiring repayment of the AFDC payments made prior to the petition should be made.” Id. The court noted that to require the appellant to repay the AFDC payments of which she had no knowledge presented “both due process and laches problems.” Id. The court stated that notice of liability would have allowed the appellant to limit or avoid liability by seeking custody of the child, pursuing “her former husband to enforce his obligation,” or obtaining “an adjudication of her inability to pay all, or part, of the amount.” Id.
The reasoning of the Oregon and New Hampshire courts more accurately reflects the applicable law regarding notice under these circumstances. First, those holdings are consistent with the United States Supreme Court’s position that the due process clause does not require pré-liability notice so long as a full hearing is held before liability becomes final. Second, like many areas of the law, pre-liability notice is not required by the common law doctrine of necessaries, which is analogous to the type of debt at issue in this case.
The due process clause, as interpreted by the United States Supreme Court, does not require pre-liability notice. At a minimum, due process requires that an individual receive notice and an opportunity to be heard before he or she is deprived of life, liberty, or property by adjudication. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). Only before an individual is to be “deprived of any significant property interest” must that individual “be given an opportunity for a hearing.” Boddie v. Connecticut, 401 U.S. 371, 379 (1971) (emphasis added). In an administrative proceeding, the hearing need not be held at a preliminary stage in the proceeding “so long as the requisite hearing is held before the final administrative order becomes effective.” Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 598 (1950).
[83]*83At common law, the father was held responsible for any “necessaries” provided to his spouse and child by a third party. H. Clark, The Law of Domestic Relations in the United States § 6.3 (2d ed. 1987). Although the doctrine of necessaries has been abolished in Virginia because it contains an unconstitutional gender-based classification, see Schilling v. Bedford County Memorial Hospital, 225 Va. 539, 544, 303 S.E.2d 905, 908 (1983), it nonetheless provides a useful analogy on the notice issue in this case. Under the necessaries doctrine, when a wife or child obtains necessary goods or services from a third party, the third party can hold the father directly liable for reimbursement of the cost of those goods or services. H. Clark, supra, at § 6.3. For the doctrine to apply and liability to attach, consent of the father for the dependent to obtain necessaries is not required. Id. The doctrine does not contemplate prior notice that necessaries will be or are being provided to the dependent in order for the third party to later recover from the father. Instead, the father’s basic obligation of support gives rise to the debt, and the failure of the father to take action which would prevent the need of support from arising does not form the basis for requiring notice. Under the necessaries doctrine, due process has never been held to require a person to have notice in order to carry out his basic parental responsibilities before being liable when someone else assumes those responsibilities.
Under Code § 63.1-252.1, a person responsible for the support of a child is assured notice and an opportunity to be heard prior to a final adjudication of any indebtedness. At the hearing, a responsible party may contest liability for the debt and the amount of the debt. To require pre-liability notice would unduly burden the Commonwealth since locating the parent may often prove difficult in these types of cases. However, even without considering the Commonwealth’s burden in locating an absent parent, we would not require pre-liability notice for the simple reason that a parent’s knowledge that he or she has a child is notice enough of the responsibility to provide basic necessities for that child. Therefore, we hold that Code § 63.1-252.1 satisfies the constitutional requirements of due process by providing a responsible party with notice and an opportunity to be heard before the judgment is final.
[84]*84To the extent that the appellant’s complaint focuses on a lack of notice within a reasonable time after his liability began to accrue, his real concern is with the lack of a statute of limitations and the refusal of the court to apply the doctrine of laches. The General Assembly removed the six year statute of limitations on collection of ADC debts from Code § 63.1-270 in 1988, leaving that statute without a statute of limitations. 1988 Va. Acts. c. 906. We may not substitute our judgment for that of the legislature, especially since the appellant makes no claim that due process of law requires a statute of limitations in this case. We do, however, address the issue of laches raised by the appellant.
Laches
The appellant claims that the trial court erred in ruling that the Commonwealth’s claim is not barred by the doctrine of laches.2 We need not address the facts upon which the trial court relied in finding that laches did not bar the Commonwealth’s claim because “laches may not be set up as a defense against the Commonwealth acting in its governmental capacity.” In Re: Dep’t of Corrections, 222 Va. 454, 465, 281 S.E.2d 857, 863 (1981). Hence, we conclude that the doctrine of laches is unavailable to the appellant as a defense in this case.
Child Support Guidelines
The appellant contends that the trial court erred in affirming the amount of the debt because the hearing officer used the child support guidelines of Code § 20-108.2 to determine a debt which accrued prior to the adoption of these guidelines.
We agree. The appellant’s debt accrued from March, 1983 to June, 1988. The child support guidelines were first enacted in April, 1988. 1988 Va. Acts c. 907. For most of the time the appellant’s debt was accruing, the guidelines were not in effect. We conclude that the retroactive application of the guidelines to de[85]*85termine the appellant’s debt was error. Instead, in determining the appellant’s debt, the trial court should have determined the amount the appellant was required to pay based on relevant factors found in Code § 20-108.2, the child support statute. This determination should be made based on factors existing at the time the assistance was being paid. Code § 63.1-251 required that the debt be “in an amount determined to be consistent with a responsible person’s ability to pay.” We hold that this statute refers to ability to pay at and during the time public assistance is being paid for the benefit of the child. In doing so, the agency may consider as a guide any administrative child support guidelines used by the Department which were in effect at the time the debt was accruing.
In sum, we affirm the trial court’s finding that notice of the appellant’s debt was constitutionally sufficient and did not violate the appellant’s due process rights. We further conclude that the doctrine of laches is not available to the appellant as a defense in this case. However, we find that the trial court erred in applying retroactively the child support guidelines of Code § 20-108.2 in determining the appellant’s debt.
Accordingly, we reverse the decision of the trial court as to the amount of the appellant’s debt and remand this cause for a redetermination of that amount in a manner consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
Elder, J., concurred.