Dissenting.—I do not disagree with the majority that a court may, if appropriate and consistent with section 152(e) of the Internal Revenue Code, allocate a tax dependency exemption to a noncustodial parent by ordering the custodial parent to execute a declaration waiving the exemption.
I do not agree, however, that such an allocation may be ordered without giving the custodial parent notice and an opportunity to be heard on the issue. Unquestionably, a court could not order a noncustodial parent to pay child support without such requisites of due process. (See Solberg v. Wenker (1985) 163 Cal.App.3d 475, 478-479 [209 Cal.Rptr. 545] [“Judgments for paternity or child support, entered as a result of an agreement between the district attorney and a parent not represented by an attorney, are voidable if the unrepresented parent can establish that he or she was not advised by the district attorney of the right to trial on the questions of paternity and ability to support and that he or she was unaware of such rights and would not otherwise have executed the agreement.”].) In my view, the custodial parent is entitled to equal due process protection.
The majority assert that here the custodial parent’s due process rights were protected because the district attorney filed the child support action on her behalf, she submitted financial disclosure statements, she could have been called to testify as a witness, and she could relitigate the issue of the tax dependency exemption in a subsequent action. I am not convinced that the foregoing is sufficient under article I, section 7, subdivision (a) of the California Constitution.
In Anderson v. Superior Court (1989) 213 Cal.App.3d 1321 [262 Cal.Rptr. 405], the custodial parent appeared without counsel as a witness in a child support action initiated by the county against her estranged husband for reimbursement for aid to families with dependent children *1286(AFDC) benefits. On the basis of her testimony, the court found she had not met her support obligations and ordered her to undertake job searches or enter the state workfare program to avoid a reduction in her AFDC payments.
The Court of Appeal directed the court to vacate its order. It considered the three factors set forth in Mathews v. Eldridge (1976) 424 U.S. 319, 335 [47 L.Ed.2d 18, 33, 96 S.Ct. 893], to determine what level of constitutional due process is required: “ ‘First, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.’ ” (Anderson v. Superior Court, supra, 213 Cal.App.3d at p. 1330.) It also considered a fourth factor set forth in People v. Ramirez (1979) 25 Cal.3d 260, 267-268 [158 Cal.Rptr. 316, 599 P.2d 622], i.e., that persons subjected to deprivatory governmental action be treated with respect and dignity. (213 Cal.App.3d at p. 1330.) The Court of Appeal there concluded that the trial court violated the custodial parent’s rights when it failed to require adequate and timely notice of the family law procedure through which her AFDC benefits could be reduced or lost.
Applying these factors here leads to the inescapable conclusion that the custodial parent’s due process rights were violated. First, the private interest at stake was the tax dependency exemption. As the majority concede, this exemption provides a financial benefit to the parent entitled to claim it. (Maj. opn., ante, at p. 1279.) Its allocation by the court may in fact affect the entire financial position of each party. (See Sarver v. Dathe (S.D. 1989) 439 N.W.2d 548, 551; Baird v. Baird (Mo.Ct.App. 1988) 760 S.W.2d 571, 573.) Thus affected were the custodial parent’s economic interests, i.e., the property referred to in the constitutional due process provision.1
Second, the potential risk of an erroneous deprivation was substantial. The custodial parent was not represented by the district attorney, nor was her position on the question, of the dependency exemption urged to the trial *1287court. Contrary to the majority’s assertion, the district attorney did not present the custodial parent’s arguments against reallocating the exemption; instead he argued that the issue should not be considered in the support action. For example, he wrote in his memorandum of points and authorities: “The position of the District Attorney is that issues of a dependency deduction for tax purposes are governed by state and federal tax law; they should not even be considered in a support action brought by the District Attorney.” And he used the same strategy at the hearing: although he casually mentioned the custodial parent’s view, he primarily argued that the question was not properly before the court. It follows that the custodial parent in fact had no opportunity to be heard or to be represented by counsel on this significant property issue.
Third, it would not have been unduly burdensome to have allowed the custodial parent an opportunity to be heard. The state’s interest in a support proceeding “ ‘is to insure that the moneys disbursed by the county for the aid of a needy child be returned to the public source from which they are disbursed.’ ” (County of Yolo v. Francis (1986) 179 Cal.App.3d 647, 655 [224 Cal.Rptr. 585].) The state also has an interest in ensuring adequate support for children following their parents’ dissolution of marriage. (Anderson v. Superior Court, supra, 213 Cal.App.3d 1321, 1331.) Neither of these interests would be undermined by giving the custodial parent notice and an opportunity to be heard on an issue that affects her property and welfare. Thus, although not statutorily obliged to do so, the district attorney could have then appropriately argued against the reallocation of the tax exemption (see Worth v. Superior Court (1989) 207 Cal.App.3d 1150, 1155 [255 Cal.Rptr. 304]), or could have allowed the custodial parent to appear in propria persona or to retain her own counsel. The benefits of affording such process would have far outweighed any conceivable burden.
Finally, it is true that the custodial parent may subsequently institute an independent action to relitigate the issue of the exemption, if she can find the means to do so. However, for “ ‘ “government to dispose of a person’s significant interests without offering him [or her] a chance to be heard is to risk treating him [or her] as a nonperson, an object, rather than a respected, participating citizen.” ’ ” (Anderson v. Superior Court, supra, 213 Cal.App.3d at p. 1330, quoting People v. Ramirez, supra, 25 Cal.3d 260 at pp. 267-268.) Especially in circumstances, such as here, in which the custodial parent received public support and is dependent on the county to assert her need for increased child support, we should not so lightly allow a summary deprivation of her interests. I commend the Attorney General and the district attorney for attempting to protect those interests. This court should do no less.
*1288To conclude, the court’s allocation of the tax dependency exemption to the noncustodial parent, although arguably consistent with statutory law, violated the custodial parent’s constitutional due process rights. I would reverse the judgment of the Court of Appeal.
Kennard, J., concurred.
The trial court was under the erroneous impression that because the custodial parent was earning under $10,000 a year, she was exempt from income tax and unaffected by any reallocation in the dependency exemption. Yet the custodial parent’s income declaration stated her gross income was $1,024 a month. The court’s miscalculation illustrates the problem of not allowing the custodial parent the opportunity to be heard. The district attorney recognized this in his argument to the court: “Well, [whether the custodial parent receives a tax benefit is] one of the issues that we feel is raised by their request. That’s a tax law question, Your Honor, and it’s inappropriate to address it here. And she’s not a party, the County’s a party. She’s not.”