It has been the practice in this state that “arrearages in alimony and support payments do not constitute a debt within meaning of the constitutional prohibition.” McFerran v. McFerran,(1960) 55 Wash. 2d. 471, 475, 348 P. 2d. 222 citing Decker v. Decker,(1958) 52 Wash. 2d. 456, 458, 326 P. 2d. 332 and cases cited.

            The cases cited all point back to In re Cave,(1901) 26 Wash. 213, 216, 66 P. 425 which reads in part:

It is well settled law of this country that a decree or order of alimony in a divorce proceeding is not a debt, within the meaning of that term as used in §17 of article I of our constitution.  Audubon v. Shufeldt, 181 U.S. 575 (21 Sup. Ct. 735); Barclay v. Barclay, 184 Ill. 375 (56 N.E. 636, 51 A.L.R. 351)

 

            Audubon, also at 45 L. Ed. 1009 is a classic decision providing that alimony shall not be dischargeable in bankruptcy, which is now codified as 11 U.S.C. §523(a)(5).  At 181 U.S. 579 it quotes Barclay at 56 N.E. 637:

The liability to pay alimony is not founded upon a contract, but it is a penalty imposed for a failure to perform a duty.

 

            Child support, then considered an element of alimony, was also considered a penalty.

            At the turn of the century, sexual intercourse outside of marriage was considered to be highly immoral.  Per this belief, abortion was illegal, sodomy laws were brutally enforced against homosexuals, and paternity proceedings were considered to be quasi-criminal in nature, the child support thus resulting to serve a punitive purpose.

            Also at the turn of the century, divorce could only be obtained upon the establishment of “grounds”, that is, the petitioner had to prove that respondent “wronged” her somehow.  Grounds included adultery, abandonment, abuse or cruelty, and conviction of a crime resulting in imprisonment.  The requirement that wrongdoing be proved was an important due process protection against the imposition of an onerous burden of alimony and child support.  Alimony was then considered to be more than a tort judgment and to be tantamount to restitution.

            That is why parents so unfortunate as to lose custody of their children have been imprisoned:  the child support was considered a PENALTY and imprisonment for nonpayment furthers the punitive purpose.

            Like any fine imposed upon conviction of a crime, it was not considered a debt within meaning of Article I Section 17 of the Washington Constitution because it was considered a PENALTY.

            In 1915, punitive damages were not recoverable in this state.  Therefore, judgments in an action for a tort were debts and the judgment debtors cannot be imprisoned under execution against their persons.  Such cannot be justified as a punishment for a wrong done.  Bronson v. Syverson, (1915) 88 Wash. 264, 152 P. 1039.

            The basic rule for interpreting Article I Section 17 is that if a monetary obligation is not a penalty or imposed to serve a punitive purpose, then it cannot be enforced with contempt proceedings, arrest, and imprisonment.

            The Supreme Court of Washington has continued this basic rule of interpretation of Article I Section 17 in its decision upholding the Court of Appeals reversal of a conviction of second degree theft.  Without a written estimate, a mechanic did not have a sufficient property interest in an automobile that was taken back by its owner without payment for the repairs, to allege the element of theft or intent to defraud.  The money due for repairs was thus merely a debt(arising out of implied contract) for which the owner cannot be imprisoned.  State v. Pike, (1992) 118 Wash. 2d. 585, 595, 826 P. 2d. 152.

            Statute that defined failure to pay for agricultural products as a crime is unconstitutional on its face because it did not include the element to defraud as an element of the crime.  Without that element, the value of the agricultural products is merely a debt.  State v. Enloe, (1987) 47 Wash. App. 165, 734 P. 2d. 520.

            But since 1901, even since 1960 when the McFerran case was decided, we have seen the rise of no fault divorce legislation.  We have seen numerous United States Supreme Court decisions finding that marriage, procreation, use of contraceptives, and abortion are fundamental rights.  Such decisions include Griswold v. Connecticut,(1965) 381 U.S. 497, 14 L. Ed. 2d. 510, 85 S. Ct. 1687 and Planned Parenthood v. Casey, (1992) 505 U.S. 833, 870, 120 L. Ed. 2d. 674, 112 S. Ct. 2791.

            Abortion cannot be “unduly burdened”, it cannot be defined as a crime.  As the potential father has no say in whether to abort or to carry the child to term, it would unduly burden’s the woman’s choice to even require that he be informed of the pregnancy; he cannot be said to have done wrong for becoming a father, inside or outside of marriage.  It is not his choice!

            Stanley v. Illinois,(1972) 405 U.S. 645, 31 L. Ed. 2d. 551, 92 S. Ct. 1208 firmly rejected the irrebuttable presumption that an unwed father is an unfit parent, and it established that he is entitled to equal protection as to the fundamental right to due process of law.  So is the respondent.

            In Zablocki v. Redhail,(1978) 434 U.S. 374, 384-386, 54 L. Ed. 2d. 618, 98 S. Ct. 673 Justice Marshall wrote:

For example, last Term in Carey v. Population Services International, 431 U.S. 678, 52 L. Ed. 2d. 675, 97 S. Ct. 2010 (1977), we declared:

“While the outer limits of (the right to personal privacy) have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified governmental interference are personal decisions relating to marriage.  Loving v. Virginia, 388 U.S. 1, 2, (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542, contraception, Eisenstadt v. Baird, 405 U.S. at 453-454, 31 L. Ed. 2d. 349, 92 S. Ct. 1029, id. at 460, 463-465, (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166, 88 L. Ed. 645, 64 S. Ct. 438 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535, 69 L. Ed. 1070, 45 S. Ct. 571, (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 67 L. Ed. 1042, 43 S. Ct. 625 (1925).’”  Id., at 684-685, 52 L. Ed. 2d. 675 quoting Roe v. Wade, 410 U.S. 113, 152-153, 35 L. Ed. 2d. 147, 93 S. Ct. 705 (1973).

See also Cleveland Board of Education v. LaFluer, 414 U.S. 632, 639-640, 39 L. Ed. 2d. 52, 94 S. Ct. 791 (1974) (“This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”); Smith v. Organization of Foster Families, 431 U.S. 816, 842-844, 53 L. Ed. 2d. 14, 97 S. Ct. 2094 (1977); Moore v. East Cleveland, 431 U.S. 494, 499, 52 L. Ed. 2d. 531, 97 S. Ct. 1932 (1977); Paul v. Davis, 424 U.S. 693, 713, 47 L. Ed. 2d. 405, 96 S. Ct. 1155 (1976).

It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships.  As the facts of this case illustrate, it would make little sense to recognize a right to privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.  The woman whom appellee desired to marry had a fundamental right to seek an abortion of their expected child, see Roe v. Wade, supra, or to bring the child into life to suffer the myriad social, if not economic, disabilities that the status of illegitimacy brings, see Trimble v. Gordan, 430 U.S. 762, 768-770, and note 13, (1977), Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175-176 (1972). Surely, a decision to marry and raise the child in a traditional family setting must receive equivalent protection.  And, if appellee’s right to procreate means anything at all, it must imply some right to enter the only relationship in which the State of Wisconsin allows sexual relations legally to take place.

 

            No punitive purpose can be given effect to any alimony or child support order arising from a no-fault divorce or paternity proceeding if based solely on the parent and child relationship, and not based on any wrongdoing beyond the exercise of these fundamental rights, without violating the due process and bill of attainder provisions of the Washington and United States Constitutions.

            Nothing in the state laws define child support to be any kind of a penalty for wrongdoing, but simply a monetary requirement against the noncustodial parent for the support of the child: RCW 26.09.050-060, 26.09.100-135, 26.16.205, 26.18, 26.19, 26.21, 26.23, 26.26, 74.20, and 74.20A.

            Therefore, child support is a debt within Article I Section 17 because it is not a penalty.  To further any punitive purpose in the enforcement of a child support order that is based solely on the parent and child relationship and the lack of custody of the child by the parent deprives the parent of his liberty without due process of law in violation of Article I Section 3 of the Washington Constitution and the Fourteenth Amendment.

            The Decker finding that Article I Section 17 is intended for contractual debts and for some torts and not for alimony and child support ignores the deliberate decision in 1889 to not limit it to "debts arising out of contracts".  Such language can be found in the imprisonment for debt provisions of some other state constitutions, which are found, by their language, to not embrace alimony and child support as such are not founded upon contract. Example: State v. Lenz, (Ct. App. 1999) 230 Wis. 529, 602 N.W. 2d. 172, found that a court order to pay support is not a debt founded on a contract.  Article I Section 16 of the Wisconsin Constitution specifies "debts arising out of contracts."  The framers of the Washington Constitution made a deliberate decision to incorporate a much broader protection than found in such state constitutions as in Wisconsin.

            Because what is involved here is the imprisonment of the respondent, the strict scrutiny standard must apply for his equal protection claim.  In P.O.P.S. v. Gardner, (9th Cir. 1993) 998 F. 2d. 764, 769, the Ninth Circuit upheld this state’s child support schedule law because it rationally promoted legitimate goal of reducing the adversarial nature of the proceedings and increasing predictability.  Imprisoning a man to coerce payment of money when such imprisonment serves a punitive purpose that is no longer valid certainly does not rationally promote any goal of reducing litigation and adversarial nature of the proceedings.

            In Commonwealth v. MacKenzie,(1975) 368 Mass. 613, 334 N.E. 2d. 613, the Massachusetts court determined that defining criminal liability for fathering a child out of wedlock without concurrent criminal liability for the mother of that same child denied equal protection of the laws.

            In Commonwealth v. Staub,(1975) 461 Pa. 486, 337 A. 2d. 258 the Pennsylvania court found that fornication and bastardy statute that placed primary responsibility for support of illegitimate child on the father created a classification not related to the state interest.  Since the unwed mother was not liable to the same extent of the unwed father, the statute violated equal protection by providing different punishment for identical conduct solely on the basis of the gender of the party.

            The custodial parent of the child has as much moral responsibility to provide for the needs of the child as the noncustodial parent.  The child support schedule law, RCW 26.19, purports to qualify her obligation in financial terms based on her income earning capacity.  But because none of this money changes hands, there is no way of monitoring whether or not she is contributing her fair share toward the support of her children.  Even if she is voluntarily unemployed or underemployed, she is not under the constant threat of contempt proceedings, arrest, and imprisonment for failing to support her children.  Indeed, if she were unemployed, even voluntarily, and without income from a husband or ex-husband, the state’s welfare agency will give her a monthly stipend under the Temporary Assistance for Needy Families program.

            Same is true for parents who remain married and retain custody of their children.

            It is only those parents without custody of their children who are subject to contempt proceedings under RCW 26.18.050.  This statute creates a classification that is not rationally related to the state’s interest in the support of its children.

            The practical effect of Washington’s child support statutes in general and RCW 26.18.050 in particular, is that ONLY the NONcustodial parents are legally required to support their children.  Custodial parents have NO such legal requirement!

            It is against ONLY the NONcustodial parent that the punitive purpose of child support that originally justified imprisonment for such debts is imposed.  Such punitive purpose is no longer valid.  In Zablocki, supra, noncustodial parents ordered to pay child support could not be denied equal protection where such distinction is not rationally related to a legitimate interest of government.

            RCW 26.18.050 thus violates the Fourteenth Amendment requirement for equal protection of the laws.