Section 11350 of the Welfare and Institutions Code Provides for Retroactive Reimbursement

Orange County sued the noncustodial father, the defendant, for reimbursement of welfare that it had paid to his child’s mother. The child’s mother received welfare payments starting before the statute’s amendment effective date. The total for those payments was $10,950. If the amended statute had been in effect, the noncustodial father would have owed a total $18,870. Orange County pursued the larger amount and asked that the excess go to the child’s mother. The Orange County family law court ordered defendant to repay the smaller amount actually paid, but at the rate of $50 per month. Orange County appealed.

The Orange County family law court addressed two issues. The first issue is whether an amendment to the statute requiring welfare reimbursement based on child support be applied retroactively? That statute, in Welfare and Institutions Code section 11350, requires that a noncustodial parent’s reimbursement to the county for welfare paid on behalf of the child is equivalent to the support that would have been required in a support order. Section 11350 further provides that the county must not keep any excess of the aid paid to family, but is disbursed to the family. The court in County of Alameda v. Johnson held that the amendment to section 11350 is to be applied retroactively, because such an intent is clearly implied in the language of the amendment. Thus the statute applies retroactively, considering a current ability to pay. Moreover while the Orange County family law court must order reimbursement it has discretion to tailor the order as it sees fit to accommodate the supporting spouse’s finances.  Therefore, though $50 per month is a seemingly low payment the court had discretion to tailor the order as such.

The second issue is whether an indigent noncustodial parent is entitled to appointed counsel in an appeal from the family law court’s refusal to enforce the reimbursement statute?

In Salas v. Cortez, the Court of Appeal held that indigent defendants in paternity cases that are prosecuted by the state are entitled to appointed counsel under both federal and state constitutions. This is because parties bring paternity cases to declare the existence of a parent child relationship, and freedom from an incorrect imposition of such a relationship is a compelling government interest. In County of Ventura v. Tilllett the Court of Appeal applied the Salas right to counsel to a support order, because such an order included potential deprivation of liberty or property, as well as disparity in bargaining power between the state and indigent defendants. Tillett concerned a support order that had the potential for incarceration.

Here the action against defendant was for reimbursement, which did not carry an incarceration risk. However the need to “level the playing field” via appointed counsel remained due to the disparity of bargaining power between indigent defendants and the state. Moreover if the defendant did not have appointed counsel the court would have needed to assist defendant with research and arguments to ensure a fair trial on the retroactivity issue. Thus, defendant was entitled to appointed counsel on appeal.

County of Orange v. Dabbs (1994) 29 Cal.App.4th 999