On petition for writ of certiorari to the Court of Appeal of
California, Second Appellate District.
The petition for a writ of certiorari is denied.
Mr. Justice BLACKMUN, with whom Mr. Justice REHNQUIST joins,
dissenting.
I believe that this case presents the substantial question
whether the ruling of the California Court of Appeal is consistent
with this Court's decision in D. H. Overmyer Co. v. Frick Co.,
405 U.S. 174
(1972). See also Isbell v. County of Sonoma,
21 Cal. 3d 61,
145 Cal. Rptr. 368, 577 P.2d 188, cert. denied as out of time, 439
U.S. 996 (1978).
Page 444 U.S.
1098 , 1099
The case concerns an agreement of paternity signed by the
alleged father of the unborn child of a welfare recipient. The
mother-to-be applied for welfare assistance and informed county
employees that respondent was the father of her unborn child. At
the request of the District Attorney's office, respondent came to
that office and spoke with Juanita Hickman, a family support
officer.
Although respondent expressed some doubts, he told Hickman that
"more than likely I am the father." Hickman explained to respondent
that he could sign an agreement of paternity which would be filed
in court and which would result in a judgment of paternity and an
order to pay child support. He was advised, alternatively, that if
he was not certain he was the father, the office would institute a
paternity action and serve him with a summons and complaint; he
then would have 30 days to answer and a trial would follow.
Respondent signed a paternity agreement, prepared by Hickman. It
was filed with the Ventura County Superior Court. The pertinent
part of the agreement read:
"It is hereby agreed by plaintiff, through C. STANLEY TROM,
District Attorney for the County of Ventura, and Rudy Castro, Jr.,
defendant, that the following facts are true and that a judgment be
entered against the defendant in accordance with this
agreement.
"1. Defendant acknowledges that the
District Attorney of Ventura County, does not represent him and
that he understands that he has had an opportunity to have an
attorney advise and represent him in this matter.
"2. Defendant understands that a
judgment for child support will be entered against him based upon
this agreement.
"3. The defendant is the father of:
unborn child of Viola Gonzales, due to be born December 1977.
"4. The defendant agrees to pay
$125.00 per child per month commencing on Sept. 1, 1977, and on the
same date
Page 444 U.S.
1098 , 1100
each month thereafter until termination by operation of law or
further order of court."
Six months after entry of judgment, respondent moved to set
aside the agreement and judgment on the grounds that he had signed
the agreement out of fear that he would be criminally prosecuted,
that he did not realize all the rights he was giving up, such as
the right to discovery and blood tests of the mother and child, and
that he did not know he would be liable for child support until the
child reached the age of 18 years. The Superior Court denied the
motion. The California Court of Appeal reversed .
93 Cal. App. 3d
462, 156 Cal. Rptr. 66 (1979).
The signed agreement was authorized by 11476.1 of Cal. Wel.
& Inst. Code Ann. (West Supp. 1973-1978). That section reads as
set forth in the margin.*
Page 444 U.S.
1098 , 1101
Although the Court of Appeal commented on the facts of the
particular case, and the likelihood that there had been no knowing
and voluntary waiver of due process rights, the court found 11476.1
unconstitutional on its face. The statute was declared defective
because it does not make adequate provision for the protection of
due process rights of the noncustodial parent and it does not
address the manner in which the defendant may waive those rights.
"Glaringly absent," 93 Cal.App.3d., at 469, 156 Cal.Rptr., at 70,
was a requirement that the defendant be informed of his right to
trial. The court also based its decision on the absence of any
provision for prejudgment judicial determination of the
voluntariness of a waiver of due process rights and on the
disparity of bargaining power between petitioner and
respondent.
In Overmyer this Court stated that "a cognovit clause is not,
per se, violative of Fourteenth Amendment due process." 405 U.S.,
at 187, 92 S.Ct ., at 783. We emphasized the need to consider the
facts of each situation . Id., at 178, 187-188, 783-784. While one
may sympathize with respondent's position, the Court of Appeal's
declaration that the California statute is unconstitutional on its
face, as violative of the Fourteenth Amendment, appears to
contravene the case-by-case approach of Overmyer. We indicated in
Overmyer, id., at 188, that a different result might follow where
there is great disparity in bargaining power between the parties,
but that question never has been decided specifically by the Court.
See Swarb v. Lennox,
405 U.S. 191 (1972).
Because the issue is bound to recur, I would grant the petition for
certiorari and set the case for argument.
Footnotes
[
Footnote *] "In any case where the
district attorney has undertaken enforcement of support, the
district attorney may enter into an agreement with the noncustodial
parent, on behalf of the custodial parent, a minor child, or
children, for the entry of a judgment determining paternity, if
applicable, and for periodic child support payments based on the
noncustodial parent's reasonable ability to pay. Prior to entering
into this agreement, the noncustodial parent shall be informed that
a judgment will be entered based on the agreement. The clerk shall
file the agreement without the payment of any fees or charges. The
court shall enter judgment thereon without action. The provisions
of Civil Code Section 4702 shall apply to such judgment. The
district attorney shall be directed to effect service upon the
obligor of a copy of the judgment and notify the obligor in writing
of the right to seek modification of the amount of child support
order upon a showing of changes of circumstances and upon such
showing the court shall immediately modify the order and set the
amount of child support payment pursuant to 11350, and to promptly
file proof of service thereof.
"For the purposes of this section, in
making a determination of the noncustodial parent's reasonable
ability to pay the following factors shall be considered:
"(a) The standard of living and
situation of the parties;
"(b) The relative wealth and income
of the parties;
"(c) The ability of the noncustodial
parent to earn;
"(d) The ability of the custodial
parent to earn;
"(e) The needs of the custodial
parent and any other persons dependent on such person for their
support;
"(f) The age of the parties;
"(g) Any previous court order
imposing an obligation of support."
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