AGLO 1973 No. 27 - Feb 22 1973
OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF SOCIAL AND HEALTH SERVICES ‑- AGE OF MAJORITY ‑- AID TO DEPENDENT CHILDREN ‑- SUPPORT OBLIGATIONS
Enforceability of pre‑1971 child support orders between ages of 18 and 21; obligation of the department of social and health services under RCW 74.20.040 to assist in invalidating such orders.
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February 22, 1973
Honorable Peter D. Francis
State Senator, 32nd District
Olympia, Washington 98504 Cite as: AGLO 1973 No. 27
This is written in response to your recent letter directing our attention to the 1971 "age of majority" act, chapter 292, Laws of 1971, Ex. Sess., and asking for our opinion on the following questions:
"1. Is a support order requiring support 'until 21' or 'until the age of majority' which is entered prior to the recent change in the age of majority enforceable as to children between 18 and 21?
"2. Is W.A.C. 388-16-555 (8) an incorrect interpretation of R.C.W. 74.20.040 [[RCW 74.20.040]]in that it denies support collection services to children between 18 and 21 who may still have right to support?
"3. Is the Department of Social and Health Services obligated to inform fathers of 18 year old or older children that, while the Department will not collect support for them, the support obligation continues if the decree was entered prior to the change in the age of majority?
"4. Is R.C.W. 74.20.040 [[RCW 74.20.040]]violative of due process and equal protection by allowing support services for those under 18 and denying services for those 18 or over, even though both groups have a right to support?"
We answer these questions in the manner set forth in our analysis.
[[Orig. Op. Page 2]]
This question is squarely answered in the affirmative by the state supreme court's decision inBaker v. Baker, 80 Wn.2d 736 (1972). As stated on page 742 of this opinion:
"We hold that Laws of 1971, Ex. Sess., ch. 292, § 1, p. 1603, is not retroactive and does not apply to judgments entered in divorce decrees prior to August 9, 1971, the effective date of the enactment. Therefore, it was entirely within the authority of the trial court in this case to make provisions for the support and education of the child of the parties until the child reached the age of 21 years. . . ."
This and your other two questions involve RCW 74.20.040, as amended by § 1, chapter 213, Laws of 1971, Ex. Sess., to provide as follows:
"The secretary may accept applications for support enforcement services from custodians of minor children who are not recipients of public assistance and may take action as he deems appropriate to establish or enforce child support obligations against the parent or parents of said children. Action may be taken under the provisions of chapter 74.20 RCW, the abandonment or nonsupport statutes, or other appropriate statutes of this state, including administrative remedies, to establish and enforce said child support obligations. The secretary may establish by regulation, such reasonable standards as he deems necessary to limit applications for support enforcement services. Said standards shall take into account the income, property, or other resources already available to support said minor children.
"The secretary may charge a fee to compensate the department for services rendered in establishment of or enforcement of support obligations. This fee shall be agreed on in [[Orig. Op. Page 3]] writing with the custodian of the minor children and shall be limited to not more than ten percent of any support money collected as a result of action taken by the secretary. The secretary shall by regulation establish reasonable fees for support enforcement services and said schedule of fees shall be made available to all applicants for support enforcement services. The secretary may, on showing of necessity, waive or defer any such fee."
In connection with this statute the department of social and health services has, by WAC 388-16-555, established a number of requirements which must be met by an applicant for this form of assistance. One of these requirements is that the child or children on whose behalf support assistance is being sought be under 18 years of age ‑ without regard to when, in point of time, the pertinent child support order was entered.
It is our understanding that the department's basis for this particular regulation is directly related to its position, currently being challenged in court,1/ that persons who are 18 years of age or older are no longer eligible for "aid to dependent children" payments. See, WAC 388-24-040 (1). In other words, the department is not purporting to assert that child support orders covering persons who are 18 years of age or older are no longer enforceable in those instances where the particular order was entered prior to the effective date of chapter 292, supra. Instead, it is simply taking a position that since these persons are, in its judgment, no longer potential ADC recipients, its facilities and funds (which, of course, are state facilities and funds) should not be utilized to provide assistance to such persons in the enforcement of their support orders. Accord, Article VIII, § 5 of the Washington Constitution; see, also,Morgan v. Dept. of Social Security, 14 Wn.2d 156, 127 P.2d 686 (1942), andState v. Guaranty Trust Co., 20 Wn.2d 588, 148 P.2d 323 (1944).
It will readily be noted, of course, that RCW 74.20.040, supra, is by its own terms limited to the enforcement of child support orders covering minor children, and because of chapter 292,supra, this adjective no longer applies to persons 18 years of age or older. Baker v. Baker,supra, did not hold otherwise; instead, the court in that case merely held that this 1971 "age of majority" act did not alter the [[Orig. Op. Page 4]] enforceability of a pre‑1971 support order even though the "child" covered by the order was no longer a minor.
Accordingly, at least so long as ADC payments are not required by the court to be paid to persons between 18 and 21 years of age,2/ and even, possibly, irrespective of how the court ultimately rules on this point, we think the department's exclusion of persons 18 or over from support assistance under RCW 74.20.040 is legally authorized.
As for question (3),supra, we are aware of no existing statute which would require the department of social and health services to inform fathers of 18 year old or older children that while the department will not assist such children in collecting support for them under a court order, the support obligation nevertheless continues where the decree was entered prior to the change in age of majority. Whatis appropriate, we think, is precisely what the department of social and health services is presently doing in instances such as this. We have reference to the form letter accompanying your request which, as we understand, is sent to the fathers of all children who are terminated from ADC coverage upon attaining the age of 18 and which advises such fathers as follows:
"The Washington State Legislature enacted a statute in Chapter 292, Laws of 1971, First Extraordinary Session, that provides as follows:
"'. . . Except as otherwise specifically provided by law, all persons shall be deemed and taken to be of full age for all purposes at the age of eighteen years.'
"This statute may affect your support obligation.
"I advise you to consult with your attorney and ask him to advise you as to your present and future obligation as to children eighteen years of age or older."
[[Orig. Op. Page 5]]
Finally, directing our attention to your fourth and last question, the constitutionality of RCW 74.20.040 in the abstract is, of course, not a question which this office may properly pass upon at this time. As explained in AGO 1971 No. 12 [[to Gordon L. Walgren, State Senator on March 16, 1971]], copy enclosed, it has long been the policy of this office to presume the constitutionality of all duly enacted statutes of our state until they are held otherwise by a court of competent jurisdiction.
We trust that you will understand, and that the foregoing direct answers to your first three questions will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/See, Washington State Welfare Rights Organization, et al.,v. The State of Washington, Supreme Court Cause No. 42599, currently set for oral argument on March 6, 1973.
2/In the pending lawsuit, above cited, the trial court (Thurston County Superior Court), it is to be noted, ruled in favor of the department.