Borracchini v. Jones (Washington State Court of Appeals 2009, 9th Circuit) is a case challenging passport denial for child support arrearage under 42 USC 652(k), enacted as part of the Personal Responsibility and Work Opportunity Act enacted in 1996 and modified by the Deficit Reduction Act of 2005.
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In a unanimous opinion the Washington State Court of Appeals held that although a part of Jones' child support arrearage was erroneously computed, it did not alter the fact that he owed more than $5,000 in child support. The trial court had correctly placed the burden on Jones to prove payment of his support obligations. Jones had received adequate due process because the availability of the conference board process rendered additional safeguards unnecessary. A passport predeprivation notice and hearing were not constitutionally required in the context of this case.
Richard Jones applied to renew his passport in May 2006. About one month later, he received a letter from the United States Department of State advising that his application was being rejected because he owed child support in excess of $5,000. According to Jones, he did not receive any notice or have any opportunity to challenge the certification of his arrearage. He wrote to his support enforcement officer on June 19, demanding the State correct its records and remove his name from the certified list. The State refused, informing him that he owed back support to Borracchini and Woodruff. He was also sent a letter, dated June 29, restating the reasons for the passport denial and advising him that he still had "the option of having your concerns addressed using our conference board process".
Jones was the legal guardian of his child (M.C.) and the child's mother, Patricia Cotton, paid child support to Jones. In 1999 the child ran away from home and was subsequently placed in foster care by orders of dependency and disposition agreed to by Jones, providing that foster care would be supervised by Washington Department of Social and Health Services (DSHS) and that Jones "may be held financially responsible for the foster care costs". In June 2001, a support order was entered at the request of the Office of Child Support, requiring Jones to pay $155 per month beginning April 2000 and $310 per month beginning October 2000. Jones appealed the order, arguing that as M.C.'s legal custodian, he was not required to pay support for her. M.C. was returned to her mother in January 2001, where she remained until she reached the age of 18 in July 2003.
The State brought a contempt action against Jones seeking to recover back support. In June 2002, the State's contempt motion was denied on grounds that the State presented insufficient information regarding the character of M.C.'s custody and payments being made by the State. In June 2003, the appeals court affirmed the order and held that Jones did not have legal custody of M.C. after August 1999 when the earlier orders were entered. The court explained that the Clark orders placed legal custody of M.C. in the hands of DSHS and thus suspended the custody and support provisions of the first orders. The court further held that Jones was responsible for M.C.'s foster care expenses and for her support while she was under the jurisdiction of the dependency court. The court rejected Jones' argument that he was entitled to an offset for the back support Cotton owed to him under the Sellers orders ruling that the State, not Cotton, was the true obligee of Jones' obligations for M.C.'s support.
Jones was ordered to pay $500 per month directly to Borracchini for the support of his child J.J., starting in July 1990. The monthly amounts were subsequently lowered to $400 per month in February 1992 and decreased again to $258.80 per month in September 1993 and ended in 2005 when J.J. graduated from high school. On May 15, 2007, Borracchini submitted a declaration stating her belief that Jones owed her "little or nothing in back child support. ... [The Office of Support Enforcement] has failed to pay me the sums Petitioner has paid to them or explained to me why the monies paid by Petitioner were diverted."
Jones was ordered to pay $1,009.40 per month beginning in May 2003 for the support of his child E.J. under a temporary support order. The order was revised later to eliminate the $600.00 day care and $425.50 educational expense from the transfer payment because any day care and education expenses would be paid by the parties directly to the providers. Woodruff filed a contempt action against Jones, seeking recovery of child support under the first order. In February 2004, Jones was found not to be in contempt but owed a total of $749 in back support for the period from May 1, 2003 through January 31, 2004. In May 2004, a dissolution decree, support order, and findings of fact and conclusions of law were entered. Jones was ordered to pay an additional $1,200 in back support from October 2002 through March 2003. Jones was further ordered to pay $647 per month starting in May 2004, increasing to $776 per month starting in March 2005. Finally, Woodruff was awarded a judgement of $14,075.80 for expenses, including medical bills and real estate taxes, that Jones had failed to pay as required by the prior orders.
Jones was also involved in contempt proceedings initiated by the State in June 2004. Although Jones' motion to dismiss was denied, Jones' motion for reconsideration was granted in June 2005. The order stated that the back support the State was seeking was not child support and limited the Department of Children's Services' ability to seek support payments from Jones on the contempt calendar.
In July 2006, Jones filed a pro se petition for writ of mandamus in the Thurston County Superior Court, claiming a violation of his due process rights under the Fourteenth Amendment to the United States Constitution, and moved for summary judgment. According to the trial court, Jones owed child support for children with the three mothers: $10,250 with Cotton, $3,024 with Borracchini, and $13,145 with Woodruff. The court held that certification of Jones' arrearage was proper and denied his petition for writ of mandamus. The court declined to address the due process issue.
Jones appealed the orders regarding back support as well as the order denying his petition for writ of mandamus. Jones argued that the child support arrearage calculations were inaccurate. He argued that the trial court erred in placing the burden on him to prove disputed child support payments. He claimed a violation of his procedural due process rights under the Fifth and Fourteenth Amendments. Specifically, he argued that the State deprived him of due process by failing to give him notice and an opportunity to be heard before certifying his arrearage to DSHS. Jones asserted that "in the context of passport denial ... notice and opportunity for a hearing must come before any action is taken on the passport" and that a predeprivation notice and hearing are constitutionally required in the passport denial context. All four appeals were consolidated by the Washington State Court of Appeals.
The appeals court found that although the trial court did not err in its determination of child support arrearage for Cotton and Borracchini, it did err in its determination in the Woodruff case. It therefore reduced the amount of support arrearage in the Woodruff case from $13,145 to $7,433.
The court determined that under state law, where indebtedness has been established, the burden of proving payment is on the party alleging that payment has been made and that Jones had not met that burden because his own records were not accurate.
Concerning Jones' procedural due process claim, the court first examined the three distinct factors identified in Mathews v. Eldridge 424 U.S. 319 (1976):
The court compared the private interest in international travel with the public interest in collecting child support, citing Eunique v. Powell for the proposition that the passport denial statute expressed the legislature's intent to place the public interest in collecting support payments above the obligor's interest in international travel.
It then considered the risk of erroneous deprivation and the probable value, if any, of additional or substitute safeguards. It found that the availability of the conference board process rendered additional safeguards unnecessary because the original obligation of an individual to pay child support generally derives from a final court order, the process of calculating past due child support under this order involves few sources of error, and disputes regarding the calculation of back support may be brought before a conference board at any time.
It found that the government's interests in the support of its children were compelling, citing the Ninth Circuit in Duranceau v. S Wallace J E 743 F.2d 709 and Eunique ("unsupported children must often look to the public fisc, including the federal treasury, for financial sustenance"). It also cited the State's compelling interest in the effective enforcement of judgments noting that "Any rule that requires hearings after judgement diminishes the value of judgements and threatens to turn litigation into an endless round of procedures with no possibility of vindication or ultimate success." (Duranceau at 712).
The court rejected Jones' contention that under Weinstein v. Albright he was entitled to a predeprivation notice and hearing. It found Jones' reliance on Weinstein misplaced because Weinstein did not address whether predeprivation notice and hearing were constitutionally required. Weinstein only stated that the statutory scheme for passport denial provided adequate due process; it did not establish what minimum due process was required before passport deprivation occurs. Jones' contention here was without merit because Jones' due process claim rested solely on his contention that he was entitled to predeprivation notice and hearing under the Fifth and Fourteenth Amendments.