Child Support Enforcement Case Law
Child support law is established by statutory law or case law. The following court opinions establish important rules of law for child & spousal support enforcement in California.
IRMO Sabine and Toshio M. (2007) 153 Cal. App. 4th 1203, 63 Cal. Rptr. 3d 757 (2DCA)
A California judgment was entered in 1995 ordering father to pay child, spousal and medical support. In 2003, arrears had accrued to over $300,000. Father offered mother $100,000 as part of a settlement agreement requiring mother to “abandon all and every legal claim” against him. The money was to be in her hands within 30 days. Mother accepted and signed the agreement. The money did not arrive in 30 days, leading mother to declare the settlement “null and void”. In 2004, mother retained an attorney and father again offered a lump sum amount of about $100,000, and a monthly payment of $1,000. Father’s attorney assured mother’s attorney that her acceptance of the money would not constitute a settlement of the support issue. Father paid the lump sum in December 2004 and paid $1000 per month from December 2004 until June 2005.
In 2005, the Los Angeles County Child Support Services Department (CSSD) filed a motion to determine arrears which it calculated to be $358,199, and requested the court’s decision as to whether mother and father had settled the arrearage matter in 2003. Father argued that the agreement had settled all arrearage and current support so he owed nothing preceding the CSSD motion. Mother argued that the agreement was not enforceable because she did not receive the funds within 30 days as required and also the agreement was against public policy. The court found the agreement was “too vague, ambiguous, and unclear to constitute a release of arrearages.” Toshio appealed the court’s determination that a post dissolution agreement limiting his arrearage and waiving current support due after the agreement was entered was unenforceable.
HELD: The appellate court affirmed. The 2DCA held that the agreement did not resolve any bona-fide dispute regarding the arrears and therefore there was no accord and satisfaction. An agreement to pay a small portion of the arrears in exchange for a waiver of the remainder was without consideration. The court relied on Family Code Section 3651 (c)(1) which prevents retroactive modification of child support. Under that section, the amount father owed in support prior to the agreement could not be modified or terminated. The court concluded that in the absence of a bona fide dispute regarding the amount of arrears, neither the parties nor the court have the legal ability to waive arrears. Thus the agreement was not enforceable and the trial court’s order was affirmed. On the issue of settlement of the prospective support payments, the court found that there was sufficient evidence to support the trial court’s order, including the fact that father failed to fulfill the term of the agreement requiring him to make the lump sum payment of $100,000 within 30 days.
IRMO Tavares (2007) 151. Cal.App.4th 620, 60 Cal.Rptr.3d 39
The local child support agency made a request for the court to modify ongoing child support and determine arrears. The father appealed the arrears findings.
HELD: The court of appeal denied father’s claims. The first argument was that he should not have to pay for periods when the mother concealed the child from him. The court denied his first argument based on the fact that the child was still a minor at the time of the motion which negates that argument (See IRMO Corner (1996) 14 C. 4th 504). The second argument made by the father was the liquidated amount ordered for child care costs as additional child support per FC Section 4062 exceeded the actual child care expenses. The court stated that amounts ordered as “additional support” are child support that cannot be retroactively modified.
The father also asserted constitutional challenges based on equal protection and due process. The due process argument regarding the requirement to proceed on declaration only did not apply here. Finally, the father claimed “institutional bias” because in California, child support Commissioners are hired using Federal grant monies. Since the issues here were matters of law, not fact, the court found no merit in that claim.
IRMO Hubner (2004) 124 Cal.App.4th 1082, 22 Cal.Rptr.3d 549 (2DCA, Div. 7)
The mother filed for a modification of a $6,000 per month order. The trial court ordered support modified to $19,000 per month commencing November 1997 through March 1998 when the minor turned 18. Then, support would be suspended during a time period when the child was to be an exchange student, with support to recommence upon his return to high school until his anticipated emancipation at age 19. This order was appealed.
The appellate court ruled on or about December 20, 2001, that the suspension of the support obligation was erroneous. The case was remanded and an appropriate amount of child support was to be determined. Father had paid $6,000 per month through May 1998 then stopped. Mother sought to enforce arrears accrued under the $6,000 order between April 1998 through March 1999 and obtained a money judgment on September 11, 2002. Father partially paid.
In 2003, the mother served a notice of delinquency stating she would be seeking penalty interest. Father then filed a motion to determine arrears. Among other arguments, father contended that interest on any unpaid support arrears should not commence until after the December 20, 2001 appellate court ruling. The trial court imposed a penalty (under Family Code Section 4722) and calculated arrears owed with interest from the original due date. Father appealed.
HELD: Statutory interest accrues on unpaid child support as each payment becomes due whether or not the noncustodial parent was notified that interest would accrue (Code of Civil Procedure Sections 685.010 and 685.020). The court has no authority to waive or forgive interest accrued on past- due child support amounts. Accrued arrears cannot be retroactively modified by a court waiving or forgiving interest accrued on past due child support amounts. When an order is modified on appeal, post-judgment interest accrues from the date of the original judgment.
IRMO Everett (1990) 220 Cal.App.3d 846, 269 Cal.Rptr. 917 (1DCA, Div 4)
The obligee sought determination of arrears and the parties later stipulated to a sum certain owing. The trial court ordered arrears payments of $35 per month which the obligee appealed as too low.
HELD: The court has discretion to determine amount of installment payments on arrears. Monthly payment of $35 on arrears of $15,676.08 is neither an abuse of discretion nor impermissible retroactive modification of the order given obligor’s income and circumstances.
IRMO Utigard (1981) 126 Cal.App.3d 133, 178 Cal.Rptr. 546 (3DCA, Div. 4)
After children reached majority, obligee tried to collect child support arrears. The obligor’s only asset was a house he had transferred into his second wife’s name, and the three-year statute of limitations on setting aside a fraudulent conveyance had run. The adult children tried to join the action as the three-year statute would have been tolled during their minority.
HELD: Children cannot seek a writ of execution in their own names in a divorce action to which they were not parties. Children are real parties in interest as to current support, but where the obligee is seeking arrears as reimbursement for costs of raising the children, she is the real party in interest.
IRMO Gabriel (1975) 50 Cal.App.3d 556, 123 Cal.Rptr. 454 (1DCA, Div. 4)
Former wife sought determination of support arrears. Husband appeared specially and moved to quash, contending that he had not been served with the notice of motion. His motion was denied and the court entered an arrears order.
HELD: Reversed. A motion to determine support arrears must be served on the obligor in the manner permitted by law.
CHILD SUPPORT CASE LAW – INTEREST AND INSTALLMENT JUDGMENTS
IRMO McClellan (2005) 130 Cal.App.4th 247, 30 Cal.Rptr.3d 5 (4DCA, Div. 1)
In 1994, the court made a ruling on child support arrears owed on a dissolution child support order. The court stated what was owed in both principal and interest, and set monthly payments toward the arrears. In 2003, father filed a motion to determine arrears. The local child support agency audit included interest accrued on each missed installment payment. Father argued that the 1994 order had the legal effect of stopping the future accrual of interest on all arrears accrued prior to the 1994 order and that the January 1, 2003 amendment to Family Code Section 155 which stated that the only “installment judgment” in the support context is the initial support order could not be applied retroactively to his case. The trial court denied his request to omit interest from the 2003 audit.
HELD: The court of appeal found that the 2003 amendment to Family Code Section 155 was meant to abrogate the Dupont case and clarify existing law as to judgment interest as set forth in Code of Civil Procedure Sections 685.010(a) and 685.020, and Family Code Section 4502. The amendment clarified that an arrears order was not a new installment judgment for the purpose of calculating post-judgment interest.
The court explained that generally an appellate court may not retroactively apply a new statute unless it contains express language of retroactivity, or unless other sources provide a clear and unavoidable implication that the Legislature intended retroactive application. Even then, the court must determine whether retroactive application of a law would violate a person’s constitutional rights by depriving him or her of a vested right without due process of law.
However, if the court decides that an amendment only clarified existing law, then the application of the amendment need not be analyzed as a retroactivity issue. The amendment would be considered merely a statement of what the law has always been.
United States v. Stephens (9th Cir. 2004) 374 F.3d 867
Father was convicted under the Child Support Recovery Act of 1992 (CSRA). Restitution under the CSRA is governed by the Mandatory Victims Restitution Act of 1996 (MVRA) (18 U.S.C.S. Section 3663(a)). The CSRA mandates a restitution order equal to the total unpaid support obligation (18 U.S.C.S. Sections 228(c)(1) and 228(d)). The principal balance was $46,395. The court added interest as calculated by the Georgia local child support agency and set restitution at $84,751.35, and ordered $7,207 of that amount paid to the State of Georgia for public assistance paid. Obligor appealed, contending: 1) he should not have been required to pay interest; and 2) he should not have to pay Georgia because Georgia is not a “victim” under the MVRA.
HELD: Affirmed. The restitution from a CSRA case should include interest calculated under the law of the State of the underlying order. The court declined to decide whether Georgia was a “victim” under the MVRA. Instead, it held that the MVRA allowed an owner of a property right to designate the right to collect restitution and that failure to pay child support could reasonably be understood as an offense against property. The State of Georgia was deemed a “designee” of a restitution award based on the mother’s assignment of rights and thus was properly awarded restitution. Georgia’s restitution was to be collected after mother’s portion of the arrears was paid in full. (18 U.S.C. Section 3664.)
IRMO Jacobsen (2004) 121 Cal.App.4th 1187, 18 Cal.Rptr.3d 162 (2DCA, Div. 6)
After an 11 year marriage wife filed for dissolution in 2000. In 2002, Husband filed a motion requesting temporary spousal support under Family Code Section 3600. Wife was an enrolled member of the Santa Ynez Band of Mission Indians. Wife had a large income from a distribution of gaming revenues from the Chumash Indians. Wife contended that 28 U.S.C. Section 1360(c) requires states to accord “full force and effect” to tribal ordinance or custom unless the ordinance or custom is “inconsistent with any applicable civil law.” She argued that Tribal Resolution 852 provided that per capita distribution shall not be allocated to former spouses who are not members of the Tribe. The trial court nevertheless awarded spousal support to husband. Mother appealed.
HELD: Affirmed. Because wife availed herself of the Family Court by filing for dissolution, the court possessed jurisdiction to award support (citing IRMO Purnel (1997) 52 Cal.App.4th 527, 60 Cal.Rptr.2d 667. The tribal resolution was deemed inconsistent with California law and public policy regarding temporary spousal support, which involves a strong public policy requiring spouses to support each other. The court also indicates that once wife deposited her tribal distribution in a bank account or a securities account, the money lost its identity as immune Indian property.
Dupont v. Dupont (2001) 88 Cal.App.4th 192, 105 Cal.Rptr.2d 607 (4DCA, Div. 1)
The trial court found that a 1978 order in a contempt proceeding that set the amount of accrued arrears at $9,000 and a payment of $15 each month on the arrears was an installment judgment under Code of Civil Procedure Section 685.020(b). The court ruled that interest accrued as to each missed $15 installment and not on the principal balance due. The county appealed.
HELD: The Fourth Appellate District Court of Appeal affirmed. The court found discretion under Family Code Section 290 to determine the appropriate remedy for enforcing a child support obligation, concluding that the trial court in this case had discretion to fashion an appropriate remedy in the contempt action. The court discussed that child support procedures are equitable proceedings where the trial court is allowed broad discretion. Also, the court noted that where child support may not be retroactively modified and arrears are to be handled as money judgments, it is important to recognize that such orders are within the court’s equitable power.
Dupont has been superseded by Family Code Section 155. The 2002 notes indicate that the decision in Dupont resulted in disparate application of the rules regarding accrual of interest and that it was the intent of the Legislature to abrogate the holding, and to reaffirm that the legislative intent is that no support order or notice issued, which sets forth the amount of support owed for prior periods of time or establishes a periodic payment to liquidate the support owed for prior periods, be considered a money judgment for purposes of Code of Civil Procedure Section 685.020(b).
IRMO Thompson (1996) 41 Cal.App.4th 1049, 48 Cal.Rptr.2d 882 (5DCA)
The obligor requested an accounting of the balance of his obligation from the district attorney’s office. The county sent him a schedule indicating “TOTAL MIN/DUE” of just over $3,000.
The obligor then sent a check in that amount to the county. The county later determined that there was additional arrears of approximately $4,700 and filed an application for renewal of judgment. The trial court ruled that, based on principles of equitable estoppel and accord and satisfaction, the county should be estopped from collecting additional principal and interest. The county appealed.
HELD: The Fifth Appellate District Court reversed. No evidence was shown that either the obligor or the county intended to compromise the arrearage claim (Civil Code Section 1521 and 1523). The obligor did not notify the county that his payment was in settlement of all claims. There was no evidence that the county intended to receive the payment as a full discharge. Therefore, evidence was inadequate to support the accord and satisfaction claim.
No facts existed to establish estoppel. The district attorney and respondent were equally capable of calculating the principal amount of child support owed and payments made. Further, as noted in County of Los Angeles v. Salas (1995) 38 Cal.App.4th 510, 45 Cal.Rptr.2d 61 (2DCA, Div. 5), interest on the child support judgment accrued as a matter of law, and respondent is charged with knowledge of the law.
County of Los Angeles v. Salas (1995) 38 Cal.App.4th 510, 45 Cal.Rptr.2d 61 (2DCA, Div. 5)
The trial court, (prior to 1995) excused obligor from paying interest on child support arrears based on a finding she did not receive notice of interest accruing in violation of due process.
HELD: Reversed. The district attorney was not required to give notice of accrual of interest. The obligor was charged with knowledge of the law and not entitled to claim ignorance. Interest accrued automatically by force of law and not by a declaration in the judgment. The court found that Code of Civil Procedure Section 695.211(a), (effective January 1, 1995) provided that every money judgment or order for child support shall provide notice that interest accrues at the legal rate but did not have a retroactive effect.
IRMO Perez (1995) 35 Cal.App.4th 77, 41 Cal.Rptr.2d 377 (2DCA, Div. 2)
The obligor asked the court to modify his child support order based on “changed circumstances,” and also asked the court to recalculate interest due on his unpaid child support. The trial court ordered a reduction in the amount in arrears and waived the interest due.
HELD: The court of appeal reversed, directing the trial court to issue a new and properly calculated child support order. A judgment of child support, including all lawful interest and penalties computed on it, is enforceable until paid in full. See also 42 U.S.C. Section 666(a)(9).
Rogers v. Bucks County Domestic Relations Section (3rd Cir. 1992) 959 F.2d 1268
Parents whose federal tax refunds had been intercepted for payment of past-due child support brought action against various local and Commonwealth of Pennsylvania officials, seeking interest for period officials retained funds. The mother reviewed and signed an agreement stating that she understood that the Domestic Relations Section can hold the money with no interest accrued, for up to six months. The district court dismissed the case.
HELD: The appellate court held that denial of interest on intercepted funds did not constitute a taking in violation of the parents’ constitutional rights.
Big Bear Properties, Inc. v. Gherman (1979) 95 Cal.App.3d 908, 157 Cal.Rptr. 443 (2DCA, Div. 1)
The obligor fought a renewal of judgment. In a case decided under the pre-September 1992 statute, the court affirmed the practice of applying payments to interest first.
HELD: Although compound interest generally is not allowable on a judgment, it is established that a judgment bears interest on the whole amount from its date even though the amount is in part made up of interest. As a consequence, compound interest may in effect be recovered on a judgment whereby the aggregate amount of principal and interest is turned into a new principal.
IRMO Hoffee (1976) 60 Cal.App.3d 337, 131 Cal.Rptr. 637 (1DCA, Div. 4)
The obligee wife sought a wage assignment to recover arrears and interest accruing on the arrears from the dissolution judgment. The obligor contended that the award of interest on the judgment of a marital cause is discretionary for the court. The trial court denied obligee’s request.
HELD: Reversed. Code of Civil Procedure Section 1033 provides that the clerk or judge must include in the judgment any interest from the time it was rendered or made. The obligor’s contention that Section 1003 applies only in civil actions for damages is incorrect. Section 1003 applies to all judgments calling for the payment of money, including marital judgments.
CHILD SUPPORT CASE LAW – INCARCERATION AND ENFORCEMENT
El Dorado County of Child Support Services v. Jerry B. Nutt (2008) 167 Cal.App.4th 990, 84 Cal.Rptr.3d 523
The obligor father is incarcerated in state prison. He is eligible for parole in 2045. He admitted paternity after the county filed an action against him seeking to establish parentage and support. He appealed a trial court order which made two rulings: 1) He was ordered to pay child support, but judgment was reserved as to the amount; and 2) He was ordered to provide health insurance for the child if it becomes available at no or reasonable cost. Father contended that he should be exempt from all current and future support obligations.
HELD: Citing (IRMO Smith (2001), 90 Cal. App. 4th 74,) the Court ruled that the trial court did not commit error in ruling as it did on both counts. While unlikely, it is not impossible that Nutt could be released from custody prior to the child attaining the age of 18. If he was released, there may be an ability or opportunity for him to generate income with which he might provide support and health insurance for his child. Merely by finding that Nutt has an obligation to do so, even though that obligation could not be satisfied at the present time, was not error.
IRMO Smith (2001) 90 Cal.App.4th 74, 108 Cal.Rptr.2d 537 (SDCA)
The trial court, ruling that obligors had no earning capacity due to incarceration, suspended their support obligations. The counties appealed. In a similar case, a court had refused to reduce an obligor’s obligation and he appealed. The appeals were consolidated at the Fifth Appellate District.
HELD: An earning capacity determination requires ability and opportunity. Income may not be imputed to an incarcerated parent who has no opportunity to work in prison and no other assets with which to ay support (Family Code Section 4058). The reason for the incarceration is not relevant to this determination.
Smith affirms and augments State of Oregon v. Vargas (1999) 70 Cal.App.4th 1123, 83 Cal. Rptr.2d 229.
State of Oregon v. Vargas (1999) 70 Cal.App.4th 1123, 83 Cal.Rptr.2d 229 (5DCA)
In calculating a judgment for an incarcerated parent, the trial court allowed imputation of income.
HELD: The Fifth Appellate District reversed. Income may not be imputed to an incarcerated obligor. However, the court may consider whether the party has actual assets, income or “employment possibilities” which could be used to satisfy a support obligation. The obligor’s earning capacity was required to be coupled with the opportunity for employment before support could be imposed based on imputed income.
Quaglino v. Quaglino (1979) 88 Cal.App.3d 542, 152 Cal.Rptr. 47 (2DCA, Div. 2)
Two minor children, through their guardian ad !item, sued their father for child support and sought appointment of a receiver. The father had been convicted of murdering the children’s mother and was incarcerated. The trial court, desiring more information before entering an order for child support, ordered that a receiver be appointed for the father’s property.
HELD: A receiver can be appointed for the obligor’s assets, including interests in a partnership from which child support may be paid while the obligor is in prison, even though a support order had not yet been adjudicated.
For a case in which an incarcerated obligor was found to have an ability to pay support, see Brothers v. Kern, supra.
IRMO Thompson (1979) 96 Cal.App.3d 621,158 Cal.Rptr. 160 (4DCA, Div. 1)
While the obligor was incarcerated for attempting to abduct the minor children, he was ordered to apply for a military allotment to provide for their support, and his truck was awarded to the custodial parent as payment for support.
HELD: Obligor asserted that the pending appeal deprived the trial court of jurisdiction to enforce its order. The appellate court disagreed. A notice of appeal does not automatically stay enforcement of an order. A stay is a statutory privilege which may only be granted if certain statutory requirements are complied with. The obligor also objected to the trial court’s order on the ground the court had circumvented established code procedures for the execution of judgments by requiring the direct transfer of the truck as partial child support. He claimed he had been denied his right to claim an exemption under Code of Civil Procedure Section 690 et seq. The court found there is no requirement for the trial court to follow those procedures in enforcing support orders. To the contrary Civil Code Section 4380 prescribes several methods of enforcement. The court ruled there was no interference with exemption rights in this case. Exemptions from execution are privileges which a judgment debtor may waive expressly or by action. By attempting to assign his interest in the truck to his attorney, obligor has waived any exemption privilege he may have had.
CHILD SUPPORT CASE LAW – ENFORCING CHILD SUPPORT AFTER DEATH
Cabral v. Soares (2007) 157 Cal.App.4th 1234 (1DCA, Div.3)
Tammy sued her ex-husband James and his sister Mary regarding the distribution of assets contained in a will purportedly executed by Edwina, who was James and Mary’s mother. According to the complaint filed by Tammy, James was in arrears on both child and spousal support. Edwina’s original will provided that her children (James, Mary, and a third sibling) would get equal shares in Edwina’s estate. According to Tammy’s complaint, Edwina was influenced to change her will so that James’ portion of the estate would go to Mary, who would then convey that portion back to James at some future date in order to allow James to evade enforcement of his support obligations. The trial court sustained James and Mary’s demurrer without leave to amend and dismissed the complaint.
HELD: The trial court was correct in sustaining the defendants’ demurrer insofar as the complaint alleged a “fraudulent conveyance,” something which was not possible as long as Edwina was alive. However, the trial court should have allowed leave to amend as Tammy’s allegations were more properly directed toward the validity of Edwina’s will and could have been framed in such a way as to allege a constructive trust.
IRMO Mallory (1997) 55 Cal.App.4th 1165, 64 Cal.Rptr.2d 667 (5DCA)
The trial court ruling granted wife’s motion to vacate a dissolution judgment which was entered on the day her husband died but four months after the case had been submitted for decision.
HELD: The Fifth Appellate District Court of Appeal vacated the set aside. If a party dies after all of the issues in a marriage dissolution have been submitted for decision but before a judgment is rendered, the trial court has jurisdiction to enter judgment nunc pro tune as to all issues submitted, including the status of the marriage. (Code of Civil Procedure Section 669 and Family Code Section 2344(a).)
IRMO Perry (1997) 58 Cal.App.4th 1104, 68 Cal.Rptr.2d 445 (4DCA)
Appellant trustee (paternal grandfather) was joined into the family law action in a proceeding to modify support. He was directed to commence child support payments from a living trust established by his son, a support obligor. When the obligor died, the trustee stopped paying child support.
HELD: The Fourth Appellate District affirmed the trial court decision. A child support obligation survives a parent’s death and can be enforced against his property in a living trust, as it can against his estate.
IRMO McCann (1994) 27 Cal.App.4th 102, 32 Cal.Rptr.2d 639 (1DCA, Div. 2)
The obligee died with child support order in effect. The obligor got legal custody in family court, but minor child actually lived with friends and relatives. The district attorney brought an action for child support on behalf of minor child’s grandmother and minor children themselves.
HELD: A child support order does not terminate automatically on the death of the obligee. Even if the obligor assumes custody, he or she must ask the court to terminate the order.
IRMO Gregory (1991) 230 Cal.App.3d 112, 281 Cal.Rptr 188 (1DCA, Div. 1)
In an action by a county to collect child support and arrears from the father of children collecting aid for dependent children, the trial court ruled that the support order entered in the dissolution proceeding terminated by operation of law on the death of the children’s mother, the custodial parent, and that the obligation to the county would have to be enforced through some other proceedings.
HELD: Where the child support order specifically provided for support to continue until the children reached the age of majority or until their emancipation, and neither of those events occurred during the relevant time periods, the child support order remained in effect after the obligee’s death and the county was entitled to enforce the obligation.
CHILD SUPPORT CASE LAW – APPLICATION OF PAYMENTS
IRMO Robinson (1998) 65 Cal.App.4th 93, 76 Cal.Rptr.2d 134 (3DCA)
A child received Social Security (SSA) payments due to the disability of a parent. Under Family Code Section 4504 if those payments exceed the support obligation, the obligor is entitled to credit against his current support obligation for each month that an SSA payment is received. The trial court denied obligor’s request to have his arrears reduced by the child’s receipt of derivative benefits beyond the statutory crediting scheme.
HELD: The Third Appellate District affirmed the trial court’s order. The obligor is not entitled to have the difference between the support obligation and the SSA payment applied to arrears accrued in prior months.
New legislation has altered the statute. AB 2669, effective January 1, 2005. Modified Family Code Section 4504(b) now allows child support arrears to be credited from SSA derivative benefits.
Blair v. Commissioner of Internal Revenue (1988) T.C. Memo 1988-581, 56 T.C.M. (CCH) 923
In a dissolution proceeding, obligor was ordered to pay obligee $350 per month as child support, and $150 per month as spousal support. The obligor remarried and reached an oral agreement with obligee to reduce child support to $200 per month, with spousal support remaining the same. In 1982, obligor claimed $1,800 as spousal support on his taxes, out of a total paid to obligee of $3,850. The IRS disallowed the entire alimony deduction for that year. Their son came to live with obligor in September 1983, so obligor, with obligee’s permission, ceased making child support payments then. The obligor again claimed $1,800 as alimony paid in 1983. The IRS allowed an alimony deduction of $550 for 1983.
HELD: In cases of combined spousal and child support payments where only a partial payment is made, the characterization is set by law, not by the parties. Payments are applied first to child support, then to spousal support. (Internal Revenue Code Section 71; Treasury Regulation 1.71.1.)
CHILD SUPPORT CASE LAW – WAGE ASSIGNMENTS, EMPLOYERS, AND UNIONS
National Labor Relations Board (N.L.R.B.) v. Friendly Cab Co., Inc. (2008) 512 E3d 1090 (9th Circuit)
The cab company operates several taxicabs which it leases to drivers. The drivers pay a “gate fee” per day of using the cab and drivers are expected to pick up passengers as assigned from the company dispatch and to follow certain standard operating procedures set by the company. The daily rental or gate fee varies based upon drivers’ experience, prior accidents, and make and model of the cab. The leases signed by the drivers for the use of the cabs indicate that they are independent contractors and not employees. As a result of friction which developed between the cab company management and the drivers, the drivers petitioned under the National Labor Relations Act for better working conditions.
The dispute was over whether the drivers were independent contractors or employees. If they are employees, they are protected by the National Labor Relations Act and are entitled to collective bargaining representation.
HELD: The N.L.R.B. determined that the cab drivers were employees and the N.L.R.B. was appointed to represent the drivers in a collective bargaining negotiation. The 9th Circuit upheld the ruling by the N.L.R.B.
Agency law applies in determining whether individuals are independent contractors or employees. This Cab Co. exercised control over the use of the cab, the hours of operation, mandatory days off (down time for cab repairs) and the passengers assigned to the cab drivers through the dispatch.
IRMO Johnson-Wilkes and Wilkes (1996) 48 Cal.App.4th 1569, 56 Cal.Rptr.2d 323 (3DCA)
An assignment order was placed on obligor’s disability benefits. The trial court denied obligor’s motion to quash service of an assignment order for child support. He appealed on the ground that disability benefits are exempt from enforcement of a child support obligation.
HELD: The court of appeal reversed. Some payments that might otherwise count as “earnings” under Family Code Section 5246 are shielded from assignment by incorporation of the exemption from execution in Code of Civil Procedure Section 704.130. The benefits from a permanent disability insurance policy are exempt from enforcement by an assignment order.
Exemption codes and dollar amounts may have changed since 1996. Family Code Section 5246 has been amended.
County of Shasta v. Smith (1995) 38 Cal.App.4th 329, 45 Cal.Rptr.2d 52 (3DCA)
Employer deducted support pursuant to a wage assignment but never forwarded the money to county. Employer went bankrupt and apparently left town. The obligor sought a credit against his child support arrears. The court held that the employer was not an agent of the obligee or the county agency. Therefore, the employer’s malfeasance could not be imputed to the obligee regardless of the enforcement provisions against employers set forth in Family Code Section 5241. The loss is that of the obligor and not the child. Obligor appealed.
HELD: The court of appeal affirmed. An employee, whose wages are subject to employer deductions pursuant to a wage assignment for support, bears the burden of making sure The district attorney actually receives the money from the employer.
Millard v. United States (Fed. Cir. 1990) 916 F.2d 1
The obligor in Georgia sued the United States government for honoring a California wage assignment order against his military pay and retirement benefits, alleging California lacked personal jurisdiction over him.
HELD: A garnishment proceeding to enforce judgment debt is an ancillary legal proceeding against a third party and can be brought where jurisdiction can be obtained over the third party. The United States will honor a garnishment whose validity on its face appears to evidence a legitimate exercise of jurisdiction by the issuing authority. If the obligor wants to contest jurisdiction she or he must go to the California court to do so. 42 U.S.C. Section 659 (1975) allows withholding for support against the United States.
IRMO Wilson (1989) 209 Cal.App.3d 720, 257 Cal.Rptr. 477 (1DCA, Div. 5)
Following dissolution, obligor defaulted on his support obligations. The district attorney was unable to secure a wage assignment because the obligor changed jobs frequently, and his union was uncooperative. The trial court granted the district attorney’s request to join the labor union as a party to the action.
HELD: A labor union which operates a hiring hall can be joined as a party to a marital dissolution action involving its member for purposes of ordering the union to notify the other spouse of job referrals in order to enforce the member’s child support obligation by wage assignment.
Champion International Corp. v. Agars (D. Conn. 1984) 587 F.Supp. 1274
A Connecticut divorce included support orders. After the obligor moved to Ohio and stopped paying, the obligee obtained a wage assignment order and served it on obligor’s employer’s headquarters in Connecticut.
HELD: The court need not have jurisdiction over the geographical area in which the wages are earned and paid to order a valid wage garnishment. Where jurisdiction exists over a person, the debt is also located in that jurisdiction.
Texaco, Inc. v. LeFevre (Tex. Civ. App. 1980) 610 S.W.2d 173
Texaco was subject to a New York court order requiring wage deductions of their employee and a Texas court order enjoining the deductions. The employer filed an interpleader action in federal court. The federal district court upheld the New York wage deduction order based on full faith and credit and enjoined Texas from enforcing its injunction.
HELD: A Texas resident’s wages can be garnished pursuant to a foreign court’s order.
Orrox Corp. v. Orr (Ala. 1978) 364 So.2d 1170
The obligor was president of a corporation. The corporation had been sued with a writ of garnishment.
HELD: If you can sue your employer for wages in a state, your wages also can be garnished in that state.
Sida of Hawaii, Inc. v. N.L.R.B. (1975) 512 F.2d 354 (9th Circuit)
Sida is a trade organization of taxi drivers governed by a non-salaried board of directors who must be drivers. The organization determines membership but requires only that the individuals own a suitable vehicle, have a valid and good driving record and maintain insurance. The organization is able to negotiate driving privileges for its members at the Honolulu airport and is able to compete with larger cab companies. The drivers are able to “moonlight” for other cab companies and schedule their own time off.
The drivers requested collective bargaining and the N.L.R.B found the drivers to be employees, thereby eligible to enter into collective bargaining units.
HELD: The U.S. District Court found that the drivers invested substantially in their own vehicles, were free to choose their own clients, bought their own gas and oil and were therefore independent contractors and not employees. The 9th Circuit affirmed because the organization did not exert the type of control over the drivers to indicate that they are employees.
CHILD SUPPORT CASE LAW – DEBTOR’S EXAMINATIONS
IRMO Sachs (2002) 95 Cal.App.4th 1144, 116 Cal.Rptr.2d 273 (2DCA, Div. 1)
The obligor claimed the right against self-incrimination and refused to produce documents at a judgment debtor’s examination where obligee wanted to question him in detail about his tax returns. The obligor felt that to answer would subject him to contempt proceedings. The trial court denied obligee’s motion to compel obligor to answer questions and produce documents.
HELD: Affirmed in part and reversed in part. The obligor for support payments could not invoke the Fifth Amendment privilege against self-incrimination (California Constitution Article I, Section 15; Evidence Code Section 940) in response to questions about his income at a judgment debtor’s examination. Family Code Sections 3552 and 3665 allowed tax returns to be used and discussed at a debtor’s examination subject to confidentiality rules.
This case has an extensive discussion of contempt issues raised by obligor and discusses why answering questions in the debtor’s examination would not harm obligor but rather serve as obligor’s defense. The court holds that Moss v Superior Court (1998) 17 Cal.4th 396, 71 Cal. Rptr.2d 215, 950 P.2d 59, construes the meaning of Code of Civil Procedure Section 1209.5. Proof beyond a reasonable doubt of the existence of the support order, knowledge of it, and noncompliance shall be prima facie evidence of a contempt of court. In other words, proof of those basic facts proves the entire contempt. Inability to comply is an affirmative defense that must be proven by a preponderance of the evidence by the defendant.
Southern California Bank v. Zimmerman (In re Bankruptcy of Hilde) (9th Cir. 1997) 120 F.3d 950
Plaintiff obtained a judgment after debtors declared bankruptcy. Trustee sold some items belonging to debtor, and plaintiff demanded payment of the proceeds. The lower court denied plaintiff’s priority because its lien had not been perfected.
HELD: Under Code of Civil Procedure Section 708.110(d), service of an order to appear for a judgment debtor examination creates a lien on all of the debtor’s personal property as of the date of the order. No further action is necessary to perfect the lien. If it does not lead the debtor to settle, the creditor may enforce the lien by an execution levy.
Imperial Bank v. Pim Electric (1995) 33 Cal.App.4th 540, 39 Cal.Rptr.2d 432 (1DCA, Div. 2)
Judgment debtors were ordered to turn over property at the conclusion of a judgment debtor examination. The debtors made no claim of exemption prior to the issuance of the order. The debtors appealed.
HELD: The First Appellate District Court of Appeal affirmed. Under the Code of Civil Procedure Sections 708.140 and 708.205(a), the court can issue a turnover order without a writ. This places a lien on the property enforceable by contempt. Unless the debtor claims exemption prior to the turnover order, the turnover must proceed. Debtors can make a claim for exemption after the turnover.
CHILD SUPPORT CASE LAW – SMALL CLAIMS ACTIONS
IRMO Lackey (1983) 143 Cal.App.3d 698, 191 Cal.Rptr. 309 (1DCA, Div. 3)
The obligee filed a small claims action in municipal court to collect arrears due under dissolution judgment. She obtained a judgment, but for an amount that was far less than what was actually owed. In a later district attorney action to collect the full arrears, the obligor claimed a res judicata / estoppel defense based on small claims judgment and prevailed at the trial court.
HELD: The First Appellate District Court reversed. The small claims action had no legal effect at all since the municipal court has no jurisdiction over family law matters. Also see: Family Code Sections 2330 and 2331.
CHILD SUPPORT CASE LAW – FRANCHISE TAX BOARD & IRS (ENFORCEMENT AND TAX GARNISHMENT)
State of Nebraska ex rel. Department of Social Services and I.R.S. v. Bentson (9th Cir. 1998) 146 F.3d 676
Nebraska filed an action against obligor in 1986 in Contra Costa Superior Court to collect unpaid arrears and obtained a judgment for $9,290. Satisfaction of that judgment was entered in 1992. Nebraska then submitted for Internal Revenue Service (IRS) full collection some additional arrears recovery which had been denied by the California court. The obligor got an injunction against collection from the San Francisco Superior Court which Nebraska ignored. The obligor then filed an order to show cause regarding contempt against Nebraska and the IRS that the IRS had removed to federal district court. The federal court dismissed the IRS from the action and remanded the case to the state court.
HELD: Per 26 U.S.C. Section 6305 the federal court did not have subject matter jurisdiction over an action to restrain the IRS.
Hepner v. Franchise Tax Board (1997) 52 Cal.App.4th 1475, 61 Cal.Rptr.2d 341 (2DCA, Div. 3)
Taxpayers petitioned for a writ of mandate because the statutory scheme did not allow them to put forth a claim of exemption when the Franchise Tax Board (FTB) withheld their taxes pursuant to a notice to withhold. The trial court denied the petition. The Second Appellate District Affirmed.
HELD: No right to a claim of exemption for tax debtors when enforcement is pursued by a notice to withhold.
Also see: Code of Civil Procedure Section 688.030.
Short v. U.S. (1996) 37 Fed. Cl. 335
Plaintiffs were Native Americans with a longstanding lawsuit against the United States over compensation for timber harvesting. As the case was nearing settlement, Del Norte and Humboldt County District Attorneys’ Offices submitted support arrears owed by 105 of the plaintiffs to the Secretary of Department of Health and Human Services for the IRS Full Collection program, which resulted in claims to the federal court for setoff of the arrears against the settlement. Plaintiffs moved to lift the claims.
HELD: Plaintiffs’ motion was denied. Per 26 U.S.C. Section 6305, the federal courts do not have jurisdiction to restrain or review the assessment and collection of the claims under the Internal Revenue Service (IRS) collection procedure.
Oatman v. Department of Treasury-IRS (9th Cir. 1994) 34 F.3d 787
Appellant who filed a joint income tax return with obligor sued to reclaim her half of a refund that the Internal Revenue Service (IRS) withheld to satisfy obligor’s child support arrears for the child of a former marriage. The trial court dismissed for lack of jurisdiction.
HELD: The court can review denial of appellant’s claim to part of refund withheld for obligor ‘s child support. The court found that pursuant to relevant statutes, appellant was entitled to a refund and remanded the case. An appellant who filed joint income tax returns with the obligor can reclaim his or her portion of the refund that was withheld by the IRS to satisfy the obligor ‘s child support arrears.
Fullmer v. United States (10th Cir. 1992) 962 E2d 1463
The bankruptcy court ruled that child support arrears collected by the Internal Revenue Service (IRS) on behalf of the Department of Health and Human Services (pursuant to 26 U.S.C. Section 6305 (1989)) were nondischargeable.
HELD: Under 26 U.S.C. Section 6305(b), federal courts have no jurisdiction to review or restrain assessment or collection of arrears amounts certified for collection by Department of Health and Human Services to the IRS. Actions to test the validity of certification and recover wrongfully withheld funds must be heard in state courts. Also see: Swain v. Swain (S.D. Miss. 1984) 604 F.Supp. 181; Prestwich v. IRS (1st Cir. 1986) 796 F.2d 582.
Rogers v. Bucks County Domestic Relations Section (E.D. PA 1991) 773 F.Supp. 768
Parents whose federal tax refunds had been intercepted for payment of past-due child support brought an action against various local and Commonwealth of Pennsylvania officials, seeking interest for period officials retained funds. The mother reviewed and signed an agreement stating that she understood that the Domestic Relations Section can hold the money with no interest accrued, for up to six months. The district court dismissed the case.
HELD: The IRS tax intercept program does not deny due process or take property without just compensation in not paying interest on tax refunds collected and held pending distribution to support obligee. No property right in the funds is created under federal statutes and regulations during time the funds are held by state entities.
Wightman v. Franchise Tax Board (1988) 202 Cal.App.3d 966, 249 Cal.Rptr. 207 (1DCA, Div. 3)
Appellants challenged the withholding of their state income tax refunds by the Franchise Tax Board and the State Controller to recover child support arrears and overdue student loans under Government Code Section 12419.5. On plaintiffs’ motion for summary judgment the trial court ruled in favor of defendants. Plaintiffs appealed, contending the program lacked procedural safeguards such as notice and the right to be heard.
HELD: The intercept program for child support arrears does not violate plaintiffs’ due process rights. For non-child support debts, due process requires the taxpayers be provided with notice and the opportunity for review of his or her objection to an offset.
CHILD SUPPORT CASE LAW – TRUSTS, LIENS AND WRITS
Ventura County Department of Child Support Services v. Brown (2004) 117 Cal.App.4th 144, 11 Cal.Rptr.3d 489 (2DCA, Div. 6)
Appellant trustee disagreed with trial court’s decisions enjoining a planned distribution from the obligor’s trust and ordering support payments for both ongoing obligations and arrears. The obligor had seven children from three different women and was the beneficiary (from his mother) of a discretionary trust that had a spendthrift clause.
HELD: The Second Appellate District Court affirmed. The court could compel the trustee to make trust distributions for child support despite the spendthrift clause. Probate Code Section 15305 is evidence of the strong public policy for child support enforcement, allowing a court to order a trustee to make support payments. A trustee’s failure to pay for support would constitute bad faith in violation of Probate Code Section 16081(a).
IRMO Cloney (2001) 91 C.A. 4th 429
A judgment lien for support recorded under obligor’s legal name was avoided when the obligor transferred title in a property he held in a name different than his legal name. The escrow agent was aware of the discrepancy in obligor’s names because she was also the Notary Public that verified obligor ‘s legal name on his driver’s license. The obligee, after discovering the sale, applied to sell the property to enforce the lien, but the buyer claimed to be a bona fide purchaser without notice. The trial court found on behalf of the buyer.
HELD: The Appellate Court reversed finding that the buyer had constructive notice of the lien. The appellate court, reasoned that when a buyer’s agent acting within the scope of his/her employment acquires actual knowledge then that knowledge can be imputed to the buyer resulting in constructive notice.
The court imputed the escrow agent’s knowledge to the buyer, not the escrow agent’s employer, the insuring title company.
IRMO Perry (1997) 58 Cal.App.4th 1104, 68 Cal.Rptr.2d 445 (4DCA, Div. 3)
Appellant trustee (paternal grandfather) was joined into the family law action in a proceeding to modify support. He was directed to commence child support payments from a living trust established by his son, a support obligor. When the obligor died, the trustee stopped paying child support.
HELD: The Fourth Appellate District affirmed the trial court decision. All of the assets of a living trust, not just the portion set aside by the settlor for the minor child, could be reached to satisfy child support obligations. The family court had jurisdiction over the trustee of a living trust established by a deceased parent because the Probate Code (Section 17000) gives the probate court concurrent jurisdiction only over proceedings by creditors of trusts. A child support obligation survives the death of the supporting parent and is a charge against his or her estate. Also see: Probate Code Section 19001.
Hoover-Reynolds v. Superior Court (1996) 50 Cal.App.4th 1273, 58 Cal.Rptr.2d 173 (4DCA, Div. 1)
The obligor owed a child support debt. The obligee received public assistance in San Diego County and the child support agency began enforcement efforts after an assignment of rights by the obligee. Obligee’s attorneys obtained monies from the obligor’s bank account through a writ. Obligee’s attorneys claimed the money and asserted they were entitled to priority due to a prior contractual lien with obligee for attorney fees. The child support agency also claimed the money.
The trial court found that public policy precluded the attorneys’ charging lien from being enforced over the child support payments and that public policy precludes an attorney from impressing a charging lien on child support payments. Cappa (below) did not apply because a charging lien can attach only when the obligee has rights to the funds, and obligee’s assignment due to her public assistance divested the obligee of any interest in the funds collected from the obligor.
HELD: The Fourth Appellate District affirmed but for different reasons. Public policy concerns prevent an attorney from enforcing a charging lien on funds owed the client by a third party to the extent those funds are payments of the third party’s obligations for child support.
Cappa v. F. & K. Rock & Sand, Inc. (1988) 203 Cal.App.3d 172, 249 Cal.Rptr. 718 (5DCA)
Plaintiff sued defendants for personal injury. Plaintiff’s attorney had a lien on the gross recovery through the retainer agreement. The county child support agency intervened with the child support judgment lien and appealed the trial court’s ruling that the attorney fee lien had priority.
HELD: A contractual lien on a cause of action granted to an attorney by his client has priority over a subsequently filed judgment lien under Code of Civil Procedure Section 708.410, by which a county sought to enforce a child support judgment obtained on behalf of another state.
Wyshak v. Wyshak (1977) 70 Cal.App.3d 384, 138 Cal.Rptr. 811 (2DCA, Div. 4)
The trial court denied husband’s motion to recall a writ of execution and to quash the writ and levy and for relief from a pending order of examination regarding his property. Husband appealed, contending that the post judgment procedure that allowed the writ and levy was a violation of due process because he was not given notice and an opportunity to defend against the issuance of the writ.
HELD: The concept of due process is flexible and calls for such procedural protections as the particular situation demands after analysis of the governmental and private interests that are affected. The court decided that noticed proceedings prior to issuance of a writ of execution are not required by California law or due process. It is not unreasonable to impose upon the judgment debtor an obligation to carry the burden of seeking relief from a writ of execution after the fact of its issuance.
CHILD SUPPORT CASE LAW – TRUSTEE’S SALE OF PROPERTY
Cal-Western Reconveyance Corp. v. Reid (2007) 152 Cal. App. 4th 1308, 62 Cal. Rptr. 3d 244 (2DCA)
In 2004, a trustee’s sale of property under a deed of trust executed by former husband resulted in surplus funds and competing claims to such funds. The trial court ordered that the Los Angeles county child support agency was entitled to recover child and spousal support arrears previously ordered plus interest through the date of hearing.
HELD: The court held that the distribution was proper because the agency had recorded an abstract of support in 1998 as required by CCP Section 697.320. Further, the agency is statutorily authorized to enforce child and spousal support obligations and has the authority to record the lien once mother requested it to enforce the support orders on her behalf. Family Code Section 17304.
CHILD SUPPORT CASE LAW – COMMUNITY PROPERTY
Dawes v. Rich (1997) 60 Cal.App.4th 24, 70 Cal.Rptr.2d 72 (4DCA, Div. 1)
Community property of a marriage was placed in a complex trust. The husband was sued and litigation went on for years. Prior to a final judgment in the lawsuit against husband, the wife died. Generally, the community is liable for debts incurred by either party during the marriage, and the decedent was personally liable for the debt to the extent of her share of the community property and the liability survived her death. The trial courts held that assets from the trust were found to have lost their community property character, thus shielding them from husband’s creditors.
HELD: The court of appeal affirmed, relying on the statute of limitation in Code of Civil Procedure Section 366.2 which applied to bar any action to recover from decedent’s estate brought more than a year after her death.
IRMO Williams (1989) 213 Cal.App.3d 1239, 262 Cal.Rptr. 317 (3DCA)
Prior to separating, George and Gail sold their home and placed the community property proceeds in escrow. Before the proceeds were divided in the dissolution, The district attorney executed a lien against the escrow to satisfy George’s child support arrears of over $19,000 for a child of a prior marriage. Civil Code Section 5120.110(a) (now Family Code Sections 910, 911) provided that the community property is liable for the debts of either spouse incurred before or during marriage, neither party contested the execution. Gail contested the court’s refusal at trial to order George to reimburse the community for the arrears.
HELD: Reversed. The case comes within the limited exception of then-Civil Code Section 4800(e) (now Family Code Section 2626) as the premarital debt was paid after the parties separated but before trial. Also see: IRMO Smaltz (1978) 82 Cal.App.3d 568, 147 Cal.Rptr. 154 (1DCA, Div. 4); Weinberg v. Weinberg (1967) 67 Cal.2d 557, 63 Cal.Rptr. 13.
CHILD SUPPORT CASE LAW – FRAUDULENT CONVEYANCES
Mejia v. Reed (2003) 31 Cal.4th 657, 3 Cal.Rptr.3d 390, 74 P.3d 166
The father (Reed) of a child from an extramarital relationship with Mejia was ordered to pay child support. Soon afterwards his marriage dissolved. The marital settlement agreement provided that Reed transfer his interest in jointly held real property to his ex-wife.
Mejia claimed that the transfer was fraudulent in that it was intended to prevent her from collecting child support. She wanted to impose a lien on the property. The trial court ruled against Mejia, disallowing her challenge to the transfer of property under the marital settlement agreement. She appealed.
The Uniform Fraudulent Transfer Act (UFTA) states that a transfer can be invalid either because of actual fraud (Civil Code Section 3439.04(a)) or constructive fraud (Civil Code Sections 3439.04(b); 3439.05). Actual fraud would be a finding of actual intent to hinder, delay or defraud any creditor of the debtor. One form of constructive fraud is when a transfer by a debtor is made without receiving equivalent value in return, for example, if the debtor is insolvent at the time of transfer or rendered insolvent by the transfer.
The Sixth District Court of Appeal ruled that the case should be remanded for further hearings regarding actual fraud and constructive fraud. It found that constructive fraud could be shown because the present value of the entire child support obligation outweighed the assets of the debtor, making him insolvent at the time of the transfer. Obligor sought review.
HELD: The California Supreme Court agreed that the UFTA does apply to marital settlement agreements. However, the court disagreed with the way the appellate court applied the UFTA to the marital settlement agreement on the issue of constructive fraud. The court ruled that the transfer was not constructive fraud under the UFTA because the cumulative discounted value of future child support, generally paid from future income rather than current assets, should not be reduced to a debt to determine solvency under Civil Code Section 3439.05. The court reasoned that child support is generally based on present earnings and earning capacity and that claims are generally paid from present earnings, not liquidation of preexisting assets. Also, future earnings are not assets under the UFTA unless subject to a levy. Thus, father’s future earnings or his future earning capacity would not appear in a calculation to offset his cumulative future child support obligation.
CHILD SUPPORT CASE LAW – LICENSE REVOCATION & CREDIT REPORTING
Tolces v. Trask (1999) 76 Cal.App.4th 285, 90 Cal.Rptr.2d 294 (4DCA, Div. 2)
The obligor wanted an offset against his arrears and the reinstatement of his license which had been suspended. In this case the offset was sought for allowing the obligee and her children from another relationship to live rent-free in a house owned by the obligor. The child of the relationship did not reside at that location. The trial court denied the obligor’s request.
HELD: The Fourth Appellate District Court of Appeal affirmed. Former Welfare and Institutions Code Section 11350.6 (now Family Code Section 17520) is not unconstitutional. Driving is a privilege subject to regulation, not a fundamental right. Revocation of a driver’s license for non-payment of child support does not unconstitutionally deprive the non-custodial parent of his right to travel or his ability to earn a living. In a case where there is nothing in the support order allowing for an in-kind offset against a child support obligation, allowing such an offset constitutes an impermissible retroactive modification of support.
CHILD SUPPORT CASE LAW – JURISDICTION
Gingold v. Gingold (1984) 161 Cal.App.3d 1177, 208 Cal.Rptr. 123 (1DCA, Div. 2)
A child support obligor in New York objected to registration of New York divorce and support order in California [under the Revised Uniform Reciprocal Enforcement of Support Act (former Code of Civil Procedure Section 1697, now see Family Code Sections 4900 et seq.)) on grounds that California lacked personal jurisdiction over him. The trial court vacated the registration.
HELD: The First Appellate District Court of Appeal reversed. It is not necessary for California to have jurisdiction over the person or property of the obligor in order to validly register a foreign support order. If the underlying order was issued by a court having jurisdiction over the obligor, it is valid and enforceable. Also see: Kulko v. Superior Court (1978) 436 U.S. 84, 98 S.Ct.1690, 56 L.Ed.2d 132.
Since the Uniform Interstate Family Support Act (UIFSA) was enacted, Family Code Section 4950 allows for a support order of another state to be registered in California for enforcement.
Also note: Family Code Section 4940 allows for an out-of-state wage assignment to be sent without registration of an order.
Kumar v. Superior Court (1982) 32 Cal.3d 689, 186 Cal.Rptr. 772, 652 P.2d 1003
The obligee moved from New York to California, registered the New York order, and filed an order to show cause (OSC) to modify the custody, visitation and support. The obligor, who had been served in New York and remained residing in New York, moved to quash service for lack of personal jurisdiction and to dismiss the OSC for lack of subject matter jurisdiction.
HELD: The obligee’s OSC was denied. California shall not modify a custody decree of another state unless it appears that the court that rendered the decree does not now have jurisdiction or has declined to assume jurisdiction to modify the decree and the court of this state has jurisdiction (former Civil Code Section 5163, now Family Code Section 3423). California courts could not exercise personal jurisdiction when obligor’s only contact with the state was use of California courts to enforce New York granted visitation rights.
Serving Orange County, San Diego County, Riverside County, San Bernardino County, Los Angeles County, and Ventura County. We enforce California child support orders and spousal support orders anywhere in California, and in many cases, nationwide, under the Uniform Interstate Family Support Act (UIFSA).
