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IRMO FREITAS: Limitations On Retroactive Support Modifications

Modification of Temporary Support Orders Revisited

by Mark D. Gershenson, Esq.

You may recall that last year in In re Marriage of Gruen (2011)191 Cal.App.4th 627, we were reminded that temporary child and support orders cannot be modified retroactively (or, for that matter, prospectively absent a pending order to show cause or motion (nka request for order)).

In Gruen, the trial court made temporary support orders "on an interim, without prejudice basis, pending the next hearing," and appointed a forensic accountant to determine H's cash flow available for support. H did not file a request to modify that order. As is not uncommon, H was slow in producing documents, and the accountant took a while to complete his cash available analysis. Nine months later, at a review hearing on the accountant's report, the court made new support orders retroactive to the effective date of the original support orders. The Court of Appeal reversed, holding that the retroactive modification exceeded the court's jurisdiction; and, that to the extent the new orders were prospective, they were improper because no OSC or motion requesting modification was pending. "The court's view that it could always retain jurisdiction to retroactively modify a temporary order was mistaken." ( Gruen, supra, 191 Cal.App.4th at 639.)

Gruen was a ruling from the Division One of the Fourth Appellate District, and began life in the San Diego Superior Court. Earlier this month, that same division of the Fourth District, in another case from the San Diego Superior Court, distinguished Gruen on the facts. ( In re the Marriage of Freitas (2012) 209 Cal.App4th. 1059 (No. D060281, October 3.)

As in Gruen, in Freitas the trial court made temporary child and spousal support orders. At the support hearing in October 2010 (i.e., before the appellate decision in Gruen), H alleged that W misstated her income and expenses. The court gave H additional time to obtain and file additional evidence as to W's income. Unlike in Gruen, however, the court specifically reserved jurisdiction to take another look at W's income based on any such additional evidence and to retroactively amend the original support order. Notwithstanding such reservation, at the subsequent hearing (triggered by H filing a new OSC to modify support retroactively after stipulating that the original OSC could go off calendar) the court concluded that pursuant to Gruen, it lacked jurisdiction to take another look at W's income. H appealed.

The Court of Appeal reversed, holding that under the facts of Freitas, its ruling in Gruen did not preclude the trial court from retroactively modifying its earlier support ruling:

[T]he trial court expressly reserved jurisdiction to amend its original support awards as to September and October 2010 based on further consideration of evidence pertaining to [W's] income. Thus, unlike in Gruen, in the present case, the parties' clear expectation was that the original support awards were not final as to these months.

Also, the Court of Appeal noted that in Gruen, H had taken his original OSC off calendar such that there was no pending motion to modify the original order. Because the trial court in Freitas had reserved jurisdiction to modify and H did not take his OSC off calendar, retroactive modification was not precluded.

What do we learn from these two cases, both of which deal with the all-too-common situation of a party not having adequate evidence of the other party's income at the initial support hearing? Magic words count, and don't be quick to take something off calendar. In particular, if a later retroactive modification of support is contemplated, the court must specifically reserve jurisdiction. Words like "without prejudice" or "interim order" will not suffice. Also, the original RFO should be continued, not permitted to go off calendar subject to a party later filing a new RFO when he or she has amassed the hoped-for additional evidence.

As it turns out, Mr. Freitas's victory was somewhat hollow. At the hearing on his request to modify support retroactively, the trial court terminated that spousal support that he had been receiving. It based such termination on his having been convicted of a domestic violence crime against W, and his failure to rebut the presumption in Family Code section 4325 against awarding spousal support to a convicted abuser. Such termination was upheld on appeal notwithstanding the lack of evidence of changed circumstances because (a) the court had not considered evidence of the domestic violence conviction at the hearing at which spousal support had originally been ordered, such that there was no relitigation of the same facts; and (b) the strong public policy reflected in Section 4325 (i.e., that victims of domestic violence should not be required to finance their own abuse). The Court of Appeal noted that, unlike with respect to permanent support when all of the Family Code Section 4320 factors must be evaluated, "domestic violence is the only issue that the Legislature has expressly mandated that a trial court consider in determining whether to award temporary spousal support." (Otherwise, the only limit on temporary spousal support awards is the "any amount necessary" language in Family Code section 3500.) As such, the trial court's error in concluding that Gruen precluded it from amending its original support award was deemed harmless error.

As to child support, the case was remanded so that the trial court could revisit its original award (of $7 per month to W) in light of any additional evidence of W's income. Except for clarifying the law, Mr. Freitas's appeal does not appear to have been terribly fruitful.

When representing the lower-income party on an initial RFO, and not having good information as to the other party's income, it may be prudent to request in the moving papers that the court make an initial "temporary temporary" order, continue the hearing on the initial RFO, and reserve jurisdiction to modify the initial support order once discovery is obtained or a forensic accountant can complete a cash-flow-available-for-support analysis, citing Freitas. Time will tell whether the bench will be receptive to such requests, as they involve a conflict between the quest for justice and the oft-cited goal of avoiding future hearings.