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 based upon 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.
The 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