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MONZON v. MARTINEZ

August 31, 1993

CESAR MONZON
v.
ANGELA L. MARTINEZ, ESQ., IN HER OFFICIAL CAPACITY AS CHIEF COUNSEL, DELAWARE COUNTY OFFICE OF CHILD SUPPORT ENFORCEMENT, AND HER INDIVIDUAL CAPACITY



The opinion of the court was delivered by: BY THE COURT; DONALD W. VANARTSDALEN

 VanARTSDALEN, S.J.

 August 31, 1993

 The parties to this action have filed cross-motions for summary judgment. Because there is no genuine issue of material fact presented in this case, and, because plaintiff has failed to offer any credible evidence upon which a jury could reasonably return a judgment in his favor, defendant is entitled to judgment as a matter of law. Defendant's motion for summary judgment (filed Doc. No. 19 and Revised Doc. No. 20) will be granted and plaintiff's motion for summary judgment (filed Doc. No. 13) will be denied.

 Plaintiff Cesar Monzon, proceeding pro se, brought this civil rights case based on 42 U.S.C. § 1983 against defendant Angela L. Martinez, Esq., in her official capacity as chief counsel, Delaware County Office of Child Support Enforcement (OCSE), and her individual capacity, *fn1" alleging a violation of Title IV-D of the Social Security Act, 42 U.S.C. § 651 et seq. Plaintiff, a resident and citizen of the State of Delaware at the time he filed the complaint, (Complaint P 2), alleges that pursuant to Title IV-D of the Social Security Act, he is entitled to seek and retain legal counsel of his choosing to represent him in all related child support matters, whether he appears as plaintiff or defendant in said matters, and, that Title IV-D requires the Delaware County (Pennsylvania) Office of Child Support Enforcement (OCSE) to pay for any and all legal expenses incurred. He seeks a declaratory judgment to that effect and a permanent injunction prohibiting defendant from pursuing any legal action against him unless and until the court determines his right to an attorney pursuant to Title IV-D of the Social Security Act. (Id. P 10). For a variety of reasons, including allegations that plaintiff was not a resident of the State of Pennsylvania until late summer 1992; plaintiff misunderstands the impact of a "net effect" child support order; plaintiff never formally requested assistance from OCSE; and plaintiff never petitioned the state court challenging enforcement or modification of the child support order, defendant contends that no violation of Title IV-D occurred. From a policy viewpoint, defendant also asserts that forcing OCSE to pay for legal expenses in connection with defending an action brought against plaintiff for his own failure to pay court ordered child support grossly frustrates the letter and spirit of Title IV-D of the Social Security Act.

 Subject matter jurisdiction is asserted under 28 U.S.C. §§ 1331, 1343, and 2001. *fn2"

 Plaintiff is the custodial parent of one of three children born during his marriage to Mrs. Monzon which ended in divorce in 1988. (Complaint P 3 and Exhibit C, at 28, 32, Attached to Def.'s Memo. Supp. Mot. Summ. J.). He alleges that in 1986, approximately two years before entry of the decree of divorce, Judge Wright of the Delaware County Court of Common Pleas entered an order awarding custody of the couples' daughter to plaintiff and custody of the couples' two sons to plaintiff's then wife. (Complaint PP 3, 5 and Exhibit C., at 32, Attached to Def.'s Memo.). An order determining child support obligations was also entered. This exact date is unclear from the record. Although neither plaintiff nor defendant attached a copy of the child support order to any document filed of record in Civil Action 92-4947, it is not disputed that the support order directed plaintiff to pay monthly child support to the mother who had been granted custody of two of the three children. Nor is it disputed that the support order contained no provision requiring the mother to pay support to plaintiff for the one child in his custody. By way of submitted affidavit, defendant explains that plaintiff is obligated to pay his former wife monthly child support, and not vice-versa, because the support order is a "net-effect" order. *fn3" (Exhibit D, P 4, Attached to Def.'s Memo.). Plaintiff, a native of Peru, holds an undergraduate degree in engineering and a master's and Ph.D. degree in electrical engineering. He is presently employed in the engineering field and makes approximately fifty-three thousand dollars per year. In comparison, his former wife speaks little English and has had a sporadic work history. (Exhibit C, at 27-28, 52-54, Attached to Def.'s Memo.).

 Plaintiff recognizes that, due to an obvious conflict of interest, OCSE could not represent both plaintiff and his former wife in the same child support matter. Where a conflict of this nature arises, he believes that sections 651, 654(6)(A), and 655(a), read together, bestow unto him the statutory right to retain private counsel to represent him in support related matters and the right to have all legal expenses incurred paid by OCSE. To support this proposition, plaintiff cites Carter v. Morrow, 526 F. Supp. 1225 (W.D.N.C. 1981), and, a motion filed and order entered by the Family Court of the State of Delaware, New Castle County, in Booth v. McKay, No. 89-6188 (Del. Fam. Ct. July 7, 1991) (copy thereof Attached to Complaint).

 Title IV-A of the Social Security Act, also known as the Aid to Families with Dependent Children program (AFDC), is a welfare program for poor families deprived of support of one parent due to that parent's absence, death, or incapacity. 42 U.S.C. 601 et seq. "AFDC provides [federal] funds to state programs giving financial assistance to needy families with dependent children." Commw. of Pa. Dept. of Public Welfare v. Markiewicz, 930 F.2d 262, 262 (3d Cir. 1991). This federal spending program is a matching funds program designed to stimulate state aid and service to AFDC recipients. Bennett v. White, 865 F.2d 1395, 1398 (3d Cir.), cert. denied, 492 U.S. 920, 106 L. Ed. 2d 593, 109 S. Ct. 3247 (1989). States desiring AFDC funds must submit a plan to the Secretary of Health and Human Services (Secretary) describing the manner in which the state will administer the federal funds. 42 U.S.C. § 601. Submitted plans must be approved by the Secretary before the state can receive federal funds. Id. § 602(b). The plan must conform with the panoply of requirements listed in section 602(a). The Secretary may withhold or reduce federal matching funds if a plan fails to comply with any requirement. Id. §§ 603, 604. An approved plan must be in effect in all political subdivisions of the state, and must provide for entering into cooperative arrangements with appropriate courts and law enforcement officials. Id. § 654.

 Pennsylvania participates in the federal AFDC program. See Bennett, 865 F.2d at 1398. Defendant furnished the court with a copy of the cooperative agreement entered into by the Pennsylvania Department of Public Welfare and the Domestic Relations Section of the Court of Common Pleas and County Commissioners of Delaware County. (Exhibit F, Attached to Def.'s Memo.). The specific AFDC requirement relevant to the present case is listed in 42 U.S.C. § 602(a)(27). That section requires all participating states, including the State of Pennsylvania, to establish and operate a child support enforcement program under Title IV-D of the Social Security Act. See 42 U.S.C. §§ 602(a)(27) and 651 et seq. The purposes of Title IV-D, the Child Enforcement Act, include:

 
enforcing the support obligations owed by absent parents to their children and the spouse (or former spouse with whom such children are living), locating absent parents, establishing paternity, obtaining child and spousal support, and assuring that assistance in obtaining support will be available . . . to all children . . . for whom such assistance is requested.

 Id. § 651. These child support enforcement services must be made available to "any individual not otherwise eligible for such services upon application filed by such individual with the State." Id. § 654(6)(A).

 Plaintiff interprets sections 651 and 654(6)(A) of Title IV-D as granting him a statutory entitlement to free legal services in connection with any child support matter solely because he is the custodial parent of one of his three children. *fn5" According to plaintiff, whether he is in immediate need of any Title IV-D service, such as locating an absent parent, determining parenthood, establishing support obligations, and/or enforcing existing support obligations, is completely irrelevant. As evident by the following questions and answers given during the taking of plaintiff's deposition, it appears that plaintiff believes he is entitled to have an attorney appointed to represent him even in the absence of a genuine dispute regarding the existing child support order:

 
Q: Do you dispute that because your wife has two of the children and you only have one that you should be paying her money for supporting those two children?
 
A: I refuse to answer that question. It's not relevant.
 
Q: What are the disputes that you have concerning the amount of money that you're paying or the fact that you're paying support?
 
A: I refuse to answer. The disputes are not relevant to this [matter].
 
Q: You're asking for an attorney to protect your rights in -- in the support differences of opinion you have with your wife. But yet you ...

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