California Courts Can Consider Equitable (Fairness) Arguments
and Refuse to Enforce Child Support Orders In Favor of a Parent
When The Children Were Living with Grandparents!
In re Marriage of Wilson (A140273) was handed down on October 27, 2016, by the First Appellate
District, Division Four (Alameda County). It reversed a trial court decision
refusing to exercise its equitable powers to set-aside or stay enforcement
of an old child support award that had accumulated arrears in favor of
the mother, for the period when the couple's daughter was living,
not with mom or dad, but with the paternal grandparents.
The child was born in 1979. In October, 1981 father was ordered to pay
child support. Between 1981 and the parties' daughter turning 18,
father alleged that she lived with the mother for two 10-month periods
and with his parents for the rest of the child's life. Mother essentially
told the same story. A significant arrears amount, plus interest, accrued.
Father filed a motion in 2012 to try to set aside those arrears, or stay
enforcement on them. The trial court denied the father's request,
refusing father any offset for the time periods when the child was living
with her grandparents, and also refused to stay collection of the amount
owing. (There was evidence that father paid his parents some support monies,
which they then turned over to the mother because they were afraid if
they didn't, she'd try to take the child back). Evidently, the
trial court believed it had no discretion to grant an equitable set-off
because the father had failed to come earlier and seek a support modification
Family Code section 3651, which provides that "a support order may not be modified or terminated
as to an amount that accrued before the date of filing of the notice of
motion or order to show cause to modify or terminate." By 2012, when
father filed his motion, the child was already a major.
Wilson appellate distinguished the effect of Family Code section 3651 from the
trial court's equitable jurisdiction to forever stay enforcement of
the arrears, citing
Jackson v. Jackson (1975) 51 CA 3rd 363, 366-367 (ruling that there is discretion to stay
arrears enforcement against a child support obligor for the periods of
time when the child was living in the obligor’s home, and reasoning
that the obligor had “directly discharged his obligation.”)
Father contended on appeal that a trial court’s discretion and equitable
powers under the
Jackson line of cases also embraced situations where neither parent is raising
the child. The Appellate Court stated that the father’s position
“has merit,” noting that the father had contributed financially
to his parents to help raise the child, the mother did not provide any
evidence that she had done so, and the record did not “foreclose
a conclusion that Father’s obligation to support Minor during the
relevant time period was discharged, in whole or in part, through the
grandparent’s care of Minor on his behalf and through the payments
he made to them.” Concluding the equitable analysis, the Appellate
Court also said “enforcement of arrears might well be nothing more
than a windfall to Mother, bearing no relation to any support or care
Minor actually received during her childhood."
The case was remanded back to the trial court, so that it can exercise
its discretion to stay enforcement, which it previously believed it did
not have the power to do. One battle won. Another to come?
Key Takeaways: This case opens the door for other questions to be asked
and answered by courts: Does it matter whether it is the maternal or paternal
grandparents caring for the child? Probably not. What if both parents
are contributing financially to the grandparents? Probably
pro rata apportionment of the arrears. Will in-kind payments to grandparent’s
be considered in an equitable stay context (e.g. payments for the grandparent’s
mortgage or food)? Possibly.
Wilson opens a door of inquiry that will help assure more
fairness comes into play in the child support arrears context as we all slog along in an era of increasing non-nuclear family child-rearing
dynamics, and how to fund our children's reasonable needs.
Nonetheless, for exactly the appellate court's fairness reasoning,
I applaud this common-sense decision!
Author: Michael C. Peterson, CFLS
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