BLUE BOOK CITATION FORM: 1994.CA.247 (http://www.versuslaw.com)
[Editor's note: footnotes (if any) trail the opinion]
[1] S033148-OP-5/9/94
[2] IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
[3] IN RE THE MARRIAGE OF MARY AND RONALD DAMICO.
[4] MARY DAMICO
[5] Respondent,
v.
[6] RONALD DAMICO
[7] Appellant.
[8] S033148
[9] Ct. App. A056426
[10] Super. Ct. No. 148428
[11] In Moffat v. Moffat (1980) 27 Cal.3d 645, we held that a parent
under a court order to pay support for a minor child must pay that
support even if the parent with custody interferes with the paying
parent's right to visit with the child. We are now asked to decide
whether a custodial parent who not merely interferes with visitation
rights, but actively conceals the parent and child from the other parent
until the child becomes an adult may thereafter seek arrearages for
child support obligations accrued during the period of concealment. The
Courts of Appeal are divided on the question to what extent, if any,
concealment is a defense to the obligation to pay child support.
[12] SEE CONCURRING AND DISSENTING OPINIONS
[13] Concealment of the child and the custodial parent from the
noncustodial parent until the child reaches the age of majority is
different from mere interference with visitation both in degree and in
kind. As a difference in degree, it obliterates the entire relationship
between the child and the noncustodial parent. This alone may not be
sufficient to warrant a different rule than that of Moffat v. Moffat,
supra, 27 Cal.3d 645. As a difference in kind, however, it makes
impossible performance of the very child support payments that are the
subject of the later arrearages action. This does distinguish Moffat. We
conclude that such concealment may estop the custodial parent from
seeking payment of child support arrearages which accumulated during the
period of concealment. We therefore affirm the judgment of the Court of
Appeal, which reached the same result.
[14] FACTS
[15] Appellant Ronald Damico (father) and respondent Mary Damico
Austin (mother) were married in 1958 and separated less than a year
later. A son was born to them on September 22, 1958. A judgment of
divorce was entered in May 1960 which ordered father to pay child
support. He paid the support for a short time, then stopped under
circumstances that are disputed. In 1979, father was served with an
application for child support arrearages. A default judgment was entered
against him in June 1980 in San Francisco Superior Court determining
that he owed $12,948.50 in child support arrearages from May 1959
through September 1978, plus interest in the amount of $10,264.22.
[16] In January 1991, the Marin County District Attorney, acting on
behalf of mother, filed a statement for registration of foreign support
order, and served father. Father moved to vacate the registration of the
foreign support order and the prior default judgment. At a hearing in
August 1991 to determine the amount of arrearages, if any, father owed,
he offered to prove the following.
[17] In 1960, he visited with mother and the child in San Francisco.
Mother told father that "she did not want [him] to see the child ever
again and that [he] would not see the child ever again. She wanted [him]
to remove [himself] from her life and from the child's life." Mother's
brother then assaulted him with a knife, forcing him to flee. Father
tried to call her several times to arrange to visit with the child, but
the person answering would hang up as soon as he identified himself.
Soon thereafter, mother "dropped out of sight and [father] could not
find her or the child" despite numerous attempts to locate and contact
them. From 1960 until 1979, after the child had become an adult, father
"had no way of contacting or paying support to them." No one contacted
him seeking support even though he was readily available. Father "had
given up all hope of ever contacting [his] son in that [he] thought that
[mother] had made good on her promise of never letting [him] see the
child, and had effectively secreted the child from [him]."
[18] In 1979, according to the offer of proof, father was "shocked
and amazed" to be served with the application for child support
arrearages. He hired counsel to represent him in that proceeding, and he
"moved to Arizona believing that this matter had been taken care of by
that attorney." He later learned that his attorney did not appear for
him, and a default judgment was entered. Father claims that had he "had
knowledge of the whereabouts of [his] child and the [mother], [he] would
have made payments in a timely fashion and attempted to visit [his]
child in a responsible manner."
[19] Mother filed a declaration in which she denied concealing the
child from father. Rather, she claimed, father threatened to "abduct"
the child, and did not pay child support. In 1963, after she remarried,
she had the child's last name legally changed to her husband's surname.
From 1964 until 1978, she "had no contact with [father], nor did [she]
have any knowledge about how to locate him." Finally, in 1978, she was
able to locate father and serve him with a motion for an order fixing
arrearages.
[20] The trial court ruled that father's offer of proof was not
relevant to the issue of arrearages, and refused to consider his
"concealment" defense. No evidentiary hearing on the question was held.
The court ultimately ordered father to pay the entire amount of
arrearages plus interest. Father appealed.
[21] The Court of Appeal reversed. It rejected mother's argument that
the earlier default judgment precluded father from raising the
concealment defense at this time. It then held that while mere
interference with visitation rights by the custodial parent does not
present a defense to the enforcement of a child support order, active
concealment does. It remanded the case for the parties to present
evidence on the question of concealment.
[22] Mother petitioned this court to review whether "evidence of a
custodial parent's concealment of a child who is the subject of a child
support order [is] admissible to estop the custodial parent from
claiming child support arrearages from the absent parent for the period
of concealment." We granted the petition. *fn1
[23] DISCUSSION
[24] In Moffat v. Moffat, supra, 27 Cal.3d 645 (Moffat), we construed
former Code of Civil Procedure section 1694, part of the Revised Uniform
Reciprocal Enforcement of Support Act, which provided in pertinent part:
"The determination or enforcement of a duty of support owed to one
obligee is unaffected by any interference by another obligee with rights
of custody or visitation granted by a court."
[25] Also pertinent to this question is former Civil Code section
4382, which provided: "The existence or enforcement of a duty of support
owed by a noncustodial parent for the support of a minor child shall not
be affected by a failure or refusal by the custodial parent to implement
any rights as to custody or visitation granted by a court to the
noncustodial parent." This latter section was part of the chapter
providing for the enforcement of judgments, orders and decrees under the
Family Law Act. It was enacted before, but took effect after, the
decision in Moffat, supra, 27 Cal.3d 645. (Stats. 1980, ch. 237, 1, p.
480; see In re Marriage of Smith (1989) 209 Cal.App.3d 196, 201.)
[26] It is not discussed in Moffat. *fn2
[27] The cases construing these statutes assume that, although each
uses slightly different language, the meaning of both is substantially
identical, at least as regards the issue in this case. The parties do
not suggest the statutes have different meanings. We doubt that the
Legislature intended different rules to apply to proceedings under
RURESA (now URESA) and the Family Law Act. The statutory language does
not compel such a conclusion. We therefore construe the statutes as
identical for purposes of this issue.
[28] In Moffat, supra, 27 Cal.3d 645, the custodial mother had
"obdurately refused to comply with the visitation order and ha[d] thus
denied the children their right to know and to be with their father."
(Id. at p. 650.) Because of the mandate of former Code of Civil
Procedure section 1694, we held that this circumstance did not provide a
defense to the obligation to pay child support. We emphasized we did not
approve of the custodial parent's conduct, but concluded that "in such
circumstances the child's need for sustenance must be the paramount
consideration." (Id. at p. 651.)
[29] We noted, however, that although "RURESA provides no forum for
litigating disputes over interference with custody and visitation
rights, a noncustodial parent in the position of Mr. Moffat is not
bereft of remedy. Such rights are initially determined by the superior
court, acting under authority of the Family Law Act. (Civ. Code, 4351.)
Thus the parent whose rights are in jeopardy may seek enforcement of the
judgment, order, or decree in the rendering court. (Id., 4380.)"
(Moffat, supra, 27 Cal.3d at pp. 651-652.) We listed "several
appropriate sanctions when the custodial parent acts with an intent to
frustrate or destroy visitation rights," including contempt proceedings,
terminating or reducing spousal support, modifying custody or child
support orders, and requiring a bond to assure compliance with the
visitation order. (Id. at p. 652.) But as regards the noncustodial
parent's obligation to continue to pay child support, we concluded that
"by her misconduct alone in depriving the father of his visitation
rights, [the custodial parent] is not estopped from pursuing the
enforcement of child support under RURESA." (Ibid.; see also id. at p.
659 ["section 1694 bars the assertion of interference with visitation
rights as a defense in a RURESA proceeding in which the duty of support
is being determined"].)
[30] Father does not challenge the holding of Moffat, but argues that
it does not apply when the custodial parent engages in active
concealment. The Court of Appeal here agreed: "A distinction has been
recognized, however, between mere interference with visitation rights by
the custodial parent, which the controlling statutes expressly foreclose
as a defense to enforcement of a child support order, and active
concealment of the child, which falls outside the purview of sections
1694 and 4382. (In re Marriage of Smith (1989) 209 Cal.App.3d 196,
201-202; State of Washington ex rel. Burton v. Leyser (1987) 196
Cal.App.3d 451, 457 (hereafter Leyser); In re Marriage of Kelley [1986]
186 Cal.App.3d 613, 618-619; Solberg v. Wenker (1985) 163 Cal.App.3d
475, 478; In re Marriage of Daves (1982) 136 Cal.App.3d 7, 10.) We are
persuaded that the distinction is a valid one, based upon the statutory
language and rationale underlying the legislation.
[31] "Sections 1694 and 4382 specifically provide that the child
support obligation is not extinguished by the custodial parent's
`interference' with or `refusal ...to implement' visitation granted by
the court, conduct which we do not equate with deliberate `sabotage' of
visitation rights by concealment of the child. (In re Marriage of Smith,
supra, 209 Cal.App.3d at p. 201; Solberg v. Wenker, supra, 163
Cal.App.3d at p. 458.) Thus, we find nothing in the language of the
statutes which expressly prohibits an estoppel defense to an action for
collection of child support arrearages based upon active concealment of
the child. Had the Legislature intended to grant an exemption from
equitable defenses to conduct which so subverts the parent-child
relationship, we believe the terms `interference' with and `refusal ...
to implement' visitation rights would have been replaced with much
more encompassing language.
[32] "We are also convinced that the primary objective of the
statutes_ that is, the child's sustenance and welfare_cannot be served
where the custodial parent seeks an award of arrearages after the child
has been concealed until reaching the age of majority. [Fn. omitted.]
(In re Marriage of Smith, supra, 209 Cal.App.3d at pp. 202-203; Leyser,
supra, 196 Cal.App.3d at p. 458.) In such a case, reimbursement to the
custodial parent will not cognizably advance the child's welfare.
(Ibid.) We see no reason to reward a custodial parent who has concealed
the whereabouts of a child, and thereby denied the values inherent in a
congenial parent-child relationship, with a belated award of support
arrearages which will be of no tangible benefit to the child. (Moffat,
supra, 27 Cal.3d at p. 658.) The welfare of a child `transcends material
considerations....Visitation rights are a two-way street: although
technically awarded by a court to a parent, the rights belong equally to
the children. Thus the Legislature and our courts alike have declared an
abiding parental relationship to be in the best interests of the child.
[Citations.]' (Ibid.; see also In re Marriage of Smith, supra, 209
Cal.App.3d at pp. 202-203; Leyser, supra, 196 Cal.App.3d at p. 457.)
Without a clear and convincing directive from the Legislature, we
decline to permit a custodial parent to undermine the parent-child
relationship by active concealment of the child_which we view as an
implicit election to raise the child without financial assistance from
the noncustodial parent_with no disruption of the corollary right to
reimbursement for child support arrearages. And finally, while a
noncustodial parent who has suffered mere interference with visitation
rights has several feasible alternative remedies_i.e., an order of
contempt, an order terminating or reducing spousal support, an order
changing custody, or a bond to assure compliance with visitation
orders_the case is otherwise where the custodial spouse has engaged in
purposeful concealment. In such circumstances, the noncustodial spouse
has no practical means of employing these remedies and may have no
recourse other than to claim concealment as a defense to collection of
child support arrearages. (Id. at p. 459; Solberg v. Wenker, supra, 163
Cal.App.3d at p. 480.)" (Italics in original.)
[33] In State of Washington ex rel. Burton v. Leyser (1987) 196
Cal.App.3d 451 (Leyser), cited by the Court of Appeal here, the mother
concealed her whereabouts and that of the children who were the subject
of a child support order for several years, until the 2 children were 12
or 13 and 17 years old, respectively. The trial court refused to order
the father to pay arrearages for the period of the concealment. The
Court of Appeal affirmed. It expressly found it "need not address the
issue of whether ... `concealment' is a distinct defense to an action
for child support arrearages under RURESA," holding instead that both
waiver and estoppel were valid defenses. (Id. at p. 455.) The court
"agree[d] the principal concern in litigating the right to current and
future child support is the welfare of the child. However, when past
unpaid support is the issue, the welfare of the child may not be
involved. For example, in this case reimbursement to the mother will
have no tangible effect on [the older child], whose location is unknown.
Quite different considerations would be present if a public agency had
provided support for the benefit of the children and was seeking
reimbursement. A public agency cannot be estopped because of the conduct
of the parents. (In re Marriage of Kelly (1986) 186 Cal.App.3d 613,
620-621.) Also, if the ongoing support of the child is at issue, our
high court in Moffat and the Legislature by its enactments on the
subject, have made it clear the child's right to sustenance must remain
free of the disputes or express or implied agreements of the parents."
(Id. at p. 457, italics in original.)
[34] The Leyser court thus found "a proper distinction between
ongoing interference with visitation which is subject to litigation and
relief, and past conduct amounting to waiver and/or estoppel of prior
support." (Leyser, supra, 196 Cal.App.3d at p. 458.) "Waiver is the
intentional relinquishment of a known right. [Citation.] ...`To
constitute waiver, it is essential that there be an existing right,
benefit, or advantage, a knowledge, actual or constructive, of its
existence, and an actual intention to relinquish it or conduct so
inconsistent with the intent to enforce the right in question as to
induce a reasonable belief that it has been relinquished.' [Citation.]
[] Estoppel by conduct is very similar and is found when one person
intentionally and deliberately leads another to believe that a
particular thing is true and to act upon such belief. [Citations.] []
... [I]t was not unreasonable for the trial court to conclude [the
mother's] conduct was inconsistent with her right to reimbursement for
sums she expended to support the children during that time. Nor was it
unreasonable to conclude she induced [the father] to believe she would
not claim child support for that period of time." (Id. at p. 460; see
also In re Marriage of McLucas (1989) 210 Cal.App.3d 83.)
[35] A different view was taken in In re Marriage of King (1993) 16
Cal.App.4th 1250. There, the noncustodial father did not know where the
children were for three months one summer while the children were still
minors. Expressly disagreeing with the Court of Appeal in this case and
Solberg v. Wenker (1985) 163 Cal.App.3d 475, the court held that "a
noncustodial parent's ignorance of the whereabouts of his children is
not a defense to the obligaton to pay child support arrears even where
the ignorance stems from the custodial parent's concealment of the
children." (In re Marriage of King, supra, 16 Cal.App.4th at p. 1251.)
The court reasoned, "First, Civil Code section 4382 is not ambiguous.
[Fn. omitted.] The statute directs that enforcement of child support
`shall not be affected by a failure or refusal ...to implement ...
custody or visitation [rights] ....' There can be no doubt that child
concealment is encompassed within the broad concept of a failure or
refusal to implement custody or visitation rights. (Civ. Code, 3536
['The greater contains the less.'].) That child concealment could be
called deliberate sabotage of visitation rights does not alter this
fact. At most, child concealment is an aggravated form rather than a
concept outside the definition of failure or refusal to implement. In
short, the Legislature's statement of the law is clear and
unconditional. It does not except aggravated forms of failures or
refusals to implement custody or visitation rights from its directive.
(In re Marriage of Tibbett [(1990) 218 Cal.App.3d 1249, 1254].)
[36] "Second, `Solberg relies on suspect authority _ cases that
predate [Civil Code section 4382] as well as cases that do not discuss
th[is] relevant authorit[y].' (In re Marriage of Tibbett, supra, 218
Cal.App.3d at p. 1253.)
[37] " `The Supreme Court has held that the Legislature intended to
separate support and visitation rights_that a custodial parent's
misconduct cannot estop that parent from asserting a child's support
rights. [Citation.] Regardless of whether the custodial parent actually
conceals the children from the noncustodial parent or merely interferes
with their visitation, these authorities apply with equal force. While
we do not condone any custodial parent's deprivation of the visitation
rights of a noncustodial parent, we find that concealment does not
constitute a defense to [a proceeding to determine child support
arrears.]' (In re Marriage of Tibbett, supra, 218 Cal.App.3d at p.
1254.)" (In re Marriage of King, supra, 16 Cal.App.4th at pp. 1253-1254;
see also In re Marriage of Tibbett (1990) 218 Cal.App.3d 1249 [no
defense that mother concealed the children for several years ending when
the children were still minors]; and Puig v. Ryberg (1991) 230
Cal.App.3d 141, 144 [dicta indicating agreement with Tibbett].) *fn3
[38] We agree with the result the Court of Appeal reached in this
case, although for somewhat different reasons. Concealment of the
custodial parent and child from the noncustodial parent until the child
is an adult interferes in an extreme manner with visitation rights. To
the extent it does only that, however, it arguably is but a species of
interference within the meaning of former Code of Civil Procedure
section 1694 (now Fam. Code, 4845) and former Civil Code section 4382
(now Fam. Code, 3556), which interference does not prevent enforcement
of the child support order. Therefore, unlike the Court of Appeal, we do
not rely on that aspect of concealment in finding estoppel.
[39] But such concealment does much more. It effectively precludes
the noncustodial parent from invoking or benefitting from the remedies
for interference that we identified in Moffat, supra, 27 Cal.3d at page
652, and precludes the very child support payments that the custodial
parent later seeks to collect. One cannot make child support payments to
a person who cannot be located. Concealment thus defeats the entire
purpose of the order, which is to provide support to a third party, the
child. In finding an estoppel defense under these facts, we rely on the
unfairness of enforcing a judgment against a person who had no clear way
of paying the monthly obligation because the custodial parent had gone
into hiding. It is unfair to let the parent hide during the term of the
obligation_usually a lengthy term_and then reappear and demand payment
of arrearages in full after he or she has defeated the purpose of the
judgment. If the Legislature had intended to make child support
obligations unaffected by such concealment, i.e., by conduct making
impossible the child support payments themselves, it could have and
surely would have used more expansive language than it did.
[40] This conclusion is bolstered by the fact the Legislature has
recently recognized the possible validity of an estoppel defense to the
enforcement of child support orders. Welfare and Institutions Code
section 11350.6, enacted in 1992, concerns enforcement of child support
obligations. Subdivision (a)(5) of that section defines the term "
`Compliance with a judgment or order for support' " as including the
situation when the obligor "has obtained a judicial finding that
equitable estoppel as provided in statute or case law precludes
enforcement of the order." (Italics added.) The Attorney General
suggests this merely recognized "the vagaries of sister-state judgments
which may be based on equitable defenses which are not available in
California, but which must be accorded full faith and credit." Nothing
in the statute, however, suggests it is limited to out-of-state
judgments.
[41] The Attorney General argues on behalf of mother that father, and
any noncustodial parent, is not entirely helpless against attempts to
conceal a child. A noncustodial parent may, for example, make use of the
services of the district attorney and the California Parent Locator
Service in an attempt to locate the missing parent. (See Welf. & Inst.
Code, 11478.5; Leyser, supra, 196 Cal.App.3d at p. 459.) Any such
attempt may or may not succeed, depending on how successful the
custodial parent is in the concealment effort. If it succeeds, then
obviously the concealment would end, thus mooting the point at least
prospectively, although such success could not remedy the effects of
past concealment and the inability to make the support payments during
the period of concealment. If it fails, the availability of this
assistance would clearly be no remedy at all.
[42] Whether father acted with reasonable diligence in this case, or
simply gave up after encountering the first difficulty in finding the
child, is a factual question for the trial court to decide. (Leyser,
supra, 196 Cal.App.3d at p. 459.) But if mother did in fact conceal
herself and the child, thus preventing the payments, she should not now
be heard to claim that father did not make herculean efforts to stymie
her, and must therefore pay her for all the years she prevented the
child from receiving the support. "[P]ractical difficulties arise when
one party is making purposeful efforts to `hide.' " (Ibid.) "Appellant
cannot play hide-and-seek with respondent and then recover support
payments for that period of time during which she successfully kept her
whereabouts unknown to him." (Szamocki v. Szamocki (1975) 47 Cal.App.3d
812, 819, quoted in Solberg v. Wenker, supra, 163 Cal.App.3d at p. 480.)
[43] The noncustodial parent who could not find the child and
custodial parent could conceivably move in court for a modification of
the child support order. Assuming the concealment was successful, such a
motion would necessarily be heard without actual notice to the custodial
parent. We need not decide whether a trial court would or should modify
a support order under such circumstances, for we believe that, although
the parent under court order to pay support should always turn to the
court for aid when the judgment creditor has made the payments
impossible, rather than relying on self-help, we focus on the conduct of
the custodial parent in finding estoppel. The custodial parent should
not be allowed to make the payments impossible, then seek arreareages
after the purpose of the judgment, payment of support for the benefit of
the child, has been defeated.
[44] Of course, as noted in Leyser, supra, 196 Cal.App.3d at p. 457,
when the noncustodial parent does locate the other parent and child, any
prior concealment would not affect a continuing obligation to pay child
support. Here, however, father has no ongoing obligation since the child
reached the age of majority before the concealment ended.
[45] The Attorney General also argues that the actions of one parent
should not diminish the child's right to support. We agree in the
abstract, but that is not now at issue. Mother's actions, assuming for
the moment the truth of father's as-yet unproven allegations, already
have deprived the child of the father's support. Indeed, the child for
whose support mother seeks the arrearages is now 35 years old. Mother is
seeking payment of the arrearages to herself, not to the child. The harm
mother did to the child by denying it father's companionship and
financial support should not now entitle her to arrearages, many years
later, that can no longer benefit the child.
[46] We thus conclude that a custodial parent who actively conceals
himor herself and the child from the noncustodial parent until the child
reaches the age of majority, despite reasonably diligent efforts by the
noncustodial parent to locate them, is estopped from later collecting
child support arrearages for the time of the concealment. Because it is
the inability to make the support payments that distinguishes
concealment from mere interference, the concealment, to be a defense,
must be of both the custodial parent and the child. We disapprove of
decisions by the Courts of Appeal to the extent they are inconsistent
with this conclusion.
[47] This case involves alleged concealment until the child reached
the age of majority. Therefore, we cannot, and do not, express an
opinion on the rule when the concealment ends while the child is still a
minor and might yet benefit from payment of the arrearages. Because
estoppel is an equitable defense, the equities might be different if the
concealment were for a shorter time, especially if the innocent child
particularly needed the arrearages. This case also does not involve
public assistance payments or the assignment of child support rights to
a county or other governmental entity, and we therefore do not decide
any questions related to those circumstances. (Cf. In re Marriage of
Smith, supra, 209 Cal.App.3d 196, with Leyser, supra, 196 Cal.App.3d at
p. 457, and In re Marriage of Kelley (1986) 186 Cal.App.3d 613,
619-621.)
[48] We also emphasize, as did the Court of Appeal, that we are
ruling only on the relevance, not the credibility, of father's
allegations, which are disputed. The facts will have to be determined by
the trial court on remand.
[49] CONCLUSION
[50] The judgment of the Court of Appeal is affirmed.
[51] ARABIAN, J.
[52] WE CONCUR:
[53] LUCAS, C.J.
[54] MOSK, J.
[55] GEORGE, J.
[56] BOREN, J. *fn4
[57] CONCURRING OPINION BY KENNARD, J.
[58] The majority opinion ignores a significant portion of the
procedural history of this case. When the full history is examined, we
find that the present action is not one to determine child support
arrearages, but an action to establish and enforce a previous judgment
that has long since become final. To successfully resist enforcement of
this final judgment, Ronald Damico (father) must establish not only that
he has a valid defense on the merits, but also that there are equitable
grounds to set aside the final judgment, and that he has acted with
diligence in seeking relief.
[59] The record shows that Mary Damico Austin (mother) obtained an
order and judgment for child support in 1960. In 1978, mother commenced
proceedings to collect past due installments of child support by
personally serving father with a notice that she was seeking arrearages
for the years 1960 to 1978. In June 1980, after father had failed to
appear at a hearing on mother's application, the superior court granted
judgment against father for over $23,000. In April 1990, mother renewed
this judgment. (See Code Civ. Proc., 683.110 et seq.) With accrued
interest, the judgment amount upon renewal was over $34,000. All these
proceedings took place in the City and County of San Francisco.
[60] In January 1991, the district attorney for Marin County, acting
on mother's behalf, filed a "Statement for Registration of Foreign
Support Order" in the superior court of that county, seeking
registration of the 1960 support order and judgment, the 1980 judgment
for arrearages, and the 1990 renewed judgment for arrearages. In
response, father moved to vacate the registration and to deny
enforcement of the support judgments. In support of the latter request,
father submitted a declaration stating, among other things, that in
1979, after being served with the notice that mother had applied for
child support arrearages, he had retained an attorney to represent him
and had then "moved to Arizona believing that this matter had been taken
care of by that attorney." *fn5 Father also tendered a defense on the
merits, as explained in the majority opinion.
[61] Mother submitted declarations stating, among other things, that
she had first sought a determination of arrearages in August of 1978.
Father retained counsel, and depositions were scheduled for November
1978, but the depositions were canceled when father retained new counsel
who requested additional time to prepare. In February 1979, father's
attorney conveyed a settlement offer of $1,800. The attorney represented
[62] Father offered no additional declarations or other evidence to
dispute the facts as stated in mother's declarations.
[63] The trial court rejected all father's tendered defenses as
legally irrelevant and ordered father to pay the support arrearages. The
Court of Appeal reversed. This court granted review. *fn6
[64] The 1980 judgment converted the unpaid installments of child
support into a lump sum obligation. In the proceeding leading to that
judgment, father could and should have presented any defenses he had to
justify nonpayment of the individual installments. Accordingly, the
judgment necessarily determined that father has no defense on the
merits. The judgment's resolution of this issue is res judicata and must
be accepted by the courts of Marin County, and by this court, unless and
until father establishes legally sufficient grounds to vacate or set
aside the 1980 judgment and the 1990 renewal of that judgment. (See
Pratali v. Gates (1992) 4 Cal.App.4th 632, 644 ["In an action on the
judgment, the only relevant question is whether the judgment has been
satisfied or remains unpaid."].)
[65] To have a final judgment set aside, a party must show more than
a mere error in the judgment or the absence of a full trial on the
merits. "[P]ublic policy requires that only in exceptional circumstances
should the consequences of res judicata be denied to a valid judgment."
(Rest., Judgments, 118, com. a, p. 571; see also Rest.2d Judgments, 70,
com. a, p. 180.) A court will enforce a judgment, without examining its
legal or factual merits, unless a party establishes grounds for relief
by one of the procedures provided for that purpose. (8 Witkin, Cal.
Procedure (3d ed. 1985) Attack on Judgment in Trial Court, 1, p. 403.)
[66] After the time for ordinary direct attack has passed (see Code
Civ. Proc., 473 [allowing up to six months to challenge a judgment
entered through the moving party's mistake, inadvertence, surprise, or
excusable neglect]), a party may obtain relief from an erroneous
judgment by establishing that it was entered through extrinsic fraud or
mistake. (In re Marriage of Park (1980) 27 Cal.3d 337, 342; Olivera v.
Grace (1942) 19 Cal.2d 570, 575.) To warrant relief on this ground, the
moving part must establish: (1) facts constituting extrinsic fraud or
mistake; (2) a substantial defense on the merits; and (3) diligence in
seeking relief from the adverse judgment.
[67] The negligence of an attorney retained to handle a matter may
constitute extrinsic mistake. (Hallett v. Slaughter (1943) 22 Cal.2d
552, 556-557; see Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471-472; 8
Witkin, op. cit. supra, Attack on Judgment in Trial Court, 214-215, pp.
617-620.) Here, father's allegations _ that he retained an attorney to
handle the matter and had assumed it was taken care of _ may, if proved,
be sufficient to establish extrinsic mistake, although mother's
declarations seem to indicate that no attorney negligence was involved
and that father had no reasonable basis for believing that the matter
had been taken care of. Relief must be denied if the party seeking
relief was guilty of negligence in permitting the mistake to occur.
(Kulchar v. Kulchar, supra, at p. 473.) As the parties' allegations have
not been subjected to the test of an adversary hearing, it is not
possible for an appellate court to determine on the present record
whether father can establish extrinsic fraud or mistake.
[68] In addition to establishing facts constituting extrinsic fraud
or mistake, father must demonstrate probable error in the final
judgments from which he seeks relief. He must show, in other words,
"facts indicating a sufficiently meritorious claim to entitle [him] to a
fair adversary hearing." (In re Marriage of Park, supra, 27 Cal.3d 337,
346; see also Bennett v. Hibernia Bank (1956) 47 Cal.2d 540, 554.) I
agree with the majority that father's allegations of mother's active
concealment, making it practically impossible for father to pay the
child support installments as they fell due, are relevant to establish a
defense of estoppel or waiver. *fn7 Again, however, the relevant facts
are disputed and the present record is inadequate to determine whether
father has a valid defense on the merits.
[69] Finally, father must demonstrate that he has proceeded with
diligence to obtain relief from the 1980 and 1990 judgments. Courts
require that a party seek relief as soon as reasonably possible after
learning of an adverse judgment. (See In re Marriage of Park, supra, 27
Cal.3d 337, 345-346; Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1150;
In re Marriage of Wipson (1980) 113 Cal.App.3d 136, 144; Alexander v.
Abbey of the Chimes (1980) 104 Cal.App.3d 39, 48.) Here, father's
declaration does not reveal when he became aware of the 1980 and 1990
judgments. Mother's evidence indicates that she attempted to serve him
by mail with the 1980 judgment, but the success of this effort presents
a factual question. As with the other requirements for equitable relief,
due diligence will be an issue for the parties to litigate in the trial
court.
[70] Upon remand, the trial court should determine whether the
previous judgment was the result of extrinsic mistake, whether father
has a substantial defense on the merits, and whether father has
exercised diligence in moving for relief from the 1980 and 1990 final
judgments. With the understanding that the trial court will undertake
these factual determinations and proceed accordingly, I concur in the
majority opinion.
[71] KENNARD, J.
[72] DISSENTING OPINION BY BAXTER, J.
[73] I respectfully dissent.
[74] The majority sanction disobedience of court orders and ignore
the limited scope of a proceeding brought under the Revised Reciprocal
Uniform Enforcement of Support Act (RURESA). The holding encourages
parents who are subject to child support orders to become scofflaws. It
threatens disruption of existing national uniform procedures by which
child support orders are enforced. Moreover, it ignores the
Legislature's express limitation on the power of a court to relieve a
parent from an obligation to pay arrearages.
[75] The result is all the more unfortunate because it is completely
unnecessary. The question of whether an estoppel against an action for
arrearages should be recognized arises only because the nonsupporting
parent failed to avail himself or herself of readily available
procedures whereby he or she could be relieved judicially of the support
obligation if, in fact, the child has been concealed by the custodial
parent.
[76] The majority acknowledge, but apparently find little
significance in them for this case, the services available to a parent
who believes a child is being concealed. If those services have been
used, however, and the whereabouts of the child remain unknown, surely
the removal and concealment of the child are grounds for judicial
modification or termination of the support obligation either because the
custodial parent is in contempt of court (see White v. White (1945) 71
Cal.App.2d 390) or on the ground that the child's circumstances and
needs are then unknown. A parent who attempts to locate the child
through officially available resources and seeks judicial relief from
the support obligation demonstrates respect for the law as well as a
sincere concern for the child and the parental obligation to the child.
The parent whom the majority reward does neither, but is nonetheless
relieved of the support obligation for the purpose of punishing the
alleged misconduct of the custodial parent.
[77] Remedies of a Noncustodial Parent
[78] The misconduct of a custodial parent who conceals a child and
thereby interferes with the custody and/or visitation rights of the
other parent is not justification for violating a court order to pay
support for the child. The supporting parent who is sincerely interested
in locating, maintaining family ties with, and supporting the child may
enlist the state's help in finding the child.
[79] When a parent violates a custody or visitation decree by taking
or detaining the child, Family Code section 3131 (Civ. Code, former
4604, subd. (b)), *fn8 imposes a mandatory duty on the district attorney
to "take all actions necessary to locate and return the child and the
person who violated the order and to assist in the enforcement of the
custody or visitation order or other order of the court by use of an
appropriate civil or criminal proceeding." In doing so, the district
attorney acts on behalf of the court (3132. Civ. Code, former 4604,
subd. (c)) at no cost to the parent. Education Code section 49076 makes
school records and forwarding requests available, and the district
attorney has access to postal, utility company, and other governmental
records, as well as tax returns. A parent has no excuse for
discontinuing support payments because a child's whereabouts are unknown
when this locator service is available.
[80] Nor is it an excuse that the parent does not know where to send
the payments even if that inability is caused by the custodial parent's
"active concealment" of the child. *fn9 If a parent has made use of the
district attorney's locator service and the child cannot be located,
relief is available from the court that made the support order. Section
3680 et seq. (Civ. Code, former 4700.1, 4801.9(a)) offer the parent a
simplified means by which to obtain modification of a support order. The
simplified procedures were adopted to create a "relatively quick way to
modify child support awards" in a proceeding at which neither party need
engage an attorney. (In re Marriage of Moore (1986) 185 Cal.App.3d
1244.) The whereabouts of the custodial parent need not be known in
order to take advantage of those procedures. Each party to the support
order is required to advise the other of the party's address and any
subsequent change of address. (3681.) Service of a request for
modification may be made by certified mail at the last known address of
the custodial parent. (3690.) A parent may not claim ignorance of the
right to seek modification or of the simplified procedures, since
section 4010 mandates that a support order be accompanied by written
notice of the procedure by which to obtain modification.
[81] By creating an estoppel to seek accrued unpaid support, the
majority excuse the failure of the obligor to seek modification or
termination of the support obligation and sanction disobedience of a
court order for support whenever a parent believes that the custodial
parent is "actively" concealing the child. The majority thereby abolish
a vested property right (see In re Marriage of Everett (1990) 220
Cal.App.3d 846, 854 ["Accrued arrearages are treated like a money
judgment, each payment having become due under an extant judgment or
order."], and by doing so relieve the parent of responsibility for
accrued child support notwithstanding an express legislative limitation
on the power of the court to forgive arrearages even in cases in which
the parent has sought modification or termination of the obligation.
Section 3651, subdivision (b), prohibits such action, stating: "A
support order may not be modified or terminated as to an amount that
accrued before the date of the filing of the notice of motion or order
to show cause to modify or terminate." (Italics added. See also, Civ.
Code, former 4700, subd. (a).)
[82] If the legislative intent that "active concealment" may not be
offered as a defense in an action to collect arrearages in child support
is not made sufficiently clear by section 3651, subdivision (b), it most
certainly is in section 4612 (Civ. Code, former 4701.1, subd.
(a)(4)(A)-(I)), which states the grounds which may be used as a defense
to a motion to force sale of the obligor's assets to pay for arrearages.
Those grounds do not include interference in any degree with custody and
visitation. *fn10
[83] Moreover, neither the majority nor Justice Kennard attempt to
reconcile the creation of an estoppel applicable to an attempt to
judicially enforce payment of arrearages with the right of an obligee to
do so "without prior court approval" through use of a writ of execution.
(5100, 5104.) That right exists as long as the support order remains
enforceable, a period that is not affected by the child having reached
majority. (4503. Civ. Code, former 4708.) It cannot have been the intent
of the Legislature that, by invoking the aid of the court to enforce a
support obligation, the obligee may be denied a right that could be
attained without resort to the court if only the obligor had readily
available assets.
[84] As a result of the majority holding, a contemptuous scofflaw who
simply disregards a court order to pay support is now in a better
position than the parent who seeks judicial relief from the support
obligation, and a parent who must use the court process to enforce
payment of arrearages is worse off than one who can simply execute on
the assets of the debtor. I cannot join an opinion which demonstrates
such cavalier disregard for valid judgments and statutes.
[85] II. RURESA Considerations
[86] In addition to its disregard for the statutory limitation on a
court's power to relieve a parent from the obligation to pay accrued
arrearages, the majority ignores the limited scope of a RURESA
enforcement proceeding.
[87] This action was brought under the procedures made available by
RURESA to persons owed support. The real issue in this case is not,
therefore, whether the court may or should recognize concealment of a
child as a defense to a parent's support obligation, but whether that
defense may be raised in a RURESA action.
[88] The majority concludes that questions related to visitation and
custody may be litigated in a proceeding initiated under former section
1694 of the Code of Civil Procedure (see now 4845), but that statute is
part of a uniform act which does not permit those questions to be raised
regardless of whether there has been "active" or, for that matter
passive, concealment of a child. Section 4845 is a RURESA provision, and
is part of the uniform act as adopted in California. (4820 et seq., Code
Civ. Proc., former 1670 et seq.)
[89] The proposed holding is contrary to the view of the overwhelming
majority of courts in states that have adopted RURESA that custody and
visitation issues may not be raised in a proceeding to enforce payment
of arrearages. (See, e.g., Barnes v. State ex rel. State of Va.
(Ala.Civ.App. 1990) 558 So.2d 948; Ibach v. Ibach (Ariz. 1979) 600 P.2d
1370; Kline v. Kline (Ark. 1976) 542 S.W.2d 499; People ex rel. Van
Meveren v. District Court in and for Larimer County (Colo. 1982) 638
P.2d 1371; County of Clearwater, Minnesota v. Petrash (Colo. 1979) 598
P.2d 138; State ex rel. Rock v. Rock. (Fla.Dist.Ct.App. 1983) 429 So.2d
1351; Vecellio v. Vecellio (Fla.Dist.Ct.App. 1975) 313 So.2d 61;
Rathmell v. Gardner (Ill.App.Ct. 1982) 434 N.E.2d 1156; People ex rel.
Argo v. Henderson (Ill.App.Ct. 1981) 422 N.E.2d 1005; (In re Marriage of
Truax (Ind.Ct.App. 1988) 522 N.E.2d 402; Beneventi v. Beneventi (Ia.
1971) 185 N.W.2d 219; Patterson v. Patterson (Kans.Ct.App. 1978) 581
P.2d 824; Brown v. Turnbloom (Mich.Ct.App. 1979) 280 N.W.2d 473; State
ex rel. Southwell v. Chamberland (Minn. 1985) 361 N.W.2d 814; England v.
England (Minn. 1983) 337 N.W.2d 681; State ex rel. Dewyea v. Knapp
(Mont. 1984) 674 P.2d 1104; *fn11 Contra Costa County ex rel. Petersen
v. Petersen (Neb. 1990) 451 N.W.2d 390; Monmouth County Bd. of Social
Services on Behalf of State of Florida for Lohman v. Lohman (1989
N.J.Super.Ct.) 551 A.2d 1051; Cahn v. Cahn (N.Y. 1982) 459 N.Y.S.2d 657;
Pifer v. Pifer (N.C.Ct.App. 1976) 229 S.E.2d 700; Brown v. Brown (Ohio
Ct.App. 1984) 474 N.E.2d 613; San Diego County v. Elavsky (Ohio 1979)
388 N.E.2d 1229; State ex rel. State of Wash., Dept. of Social and
Health Services v. Bozarth (Or.Ct.App. 1986) 722 P.2d 48; Myers v. Young
(Pa.Super.Ct. 1981) 427 A.2d 209; Kramer v. Kelly (Pa.Super.Ct. 1979)
401 A.2d 799; Hoover v. Hoover (S.C. 1978) 246 S.E.2d 179; Todd v.
Pochop (S.D. 1985) 365 N.W.2d 559; Cuccia v. Cuccia (Ten.Ct.App. 1989)
773 S.W.2d 928; Charlesworth v. State of California (Utah Ct.App. 1990)
793 P.2d 411; Johns v. Johns (Va. 1988) 364 S.E.2d 775; State ex rel.
Hubbard v. Hubbard (Wis. 1983) 329 N.W.2d 202. *fn12
[90] The courts in our sister states are firm in enforcing this rule,
and in carrying out the intent of RURESA. "As we held in State of
Colorado ex rel. McDonnell v. McCutcheon, 337 N.W.2d 645 (Minn. 1983)
under [the statute] deprivation of custody or visitation is not a proper
factor to consider in determining or enforcing interstate support
obligations." (England v. England, supra, 337 N.W.2d 681, 684.) "A
defendant in a URESA action must raise visitation and custody matters in
a separate proceeding in the state of divorce." (Todd v. Pochop, supra,
365 N.W.2d 559, 560.) "In the face of this legislative mandate, our
courts have consistently ruled that the duty of support owed to children
in a RURESA proceeding is not affected by interference with visitation
rights. [Citations.] In the seminal case of Daly v. Daly, [(1956) 21
N.J. 599; 123 A.2d 3] the Supreme Court held that the dereliction of the
custodial parent did not abrogate the noncustodial parent's duty of
support." (Monmouth County v. Lohman, supra, 551 A.2d 1051, 1053.)
[91] Notwithstanding this well-established rule, and some 20 years
after California adopted this provision of RURESA and thereby joined in
a nationwide network of uniform procedure by which to enforce support
orders, the majority suddenly finds in the legislation an exception to
the statutory obligation of California courts to comply with an
otherwise uniform law. In their eagerness to condemn parents who have,
allegedly, denied the noncustodial parent visitation and custody rights,
the majority appears to have lost sight of the goals of RURESA. The
intent of the uniform act is that an enforcement proceeding will be a
summary, expeditious proceeding at which the plaintiff need not
litigate, and the court need not adjudicate, claims related to custody
and visitation. (Johns v. Johns, supra, 364 S.E.2d 775; Barnes v. State
ex rel. State of Va., supra, 558 So.2d 948.)
[92] "The very purpose of the URESA requires that it be procedurally
and substantively streamlined. Interstate enforcement of support
obligations will be impaired if matters of custody, visitation, or a
custodial parent's contempt are considered by the responding court. The
introduction of such collateral issues will burden the efficiency of the
URESA mechanism. Moreover, permitting the resolution of other family
matters in a URESA proceeding may deter persons from invoking the
URESA." (Hubbard v. Hubbard, supra, 329 N.W.2d 202, 205.)
[93] "The purpose of RURESA is to create an economical and expedient
means of enforcing support orders for parties located in different
states." (Johns v. Johns, supra, 364 S.E.2d 775, 776.) "[N]o issues
other than support may be considered in a URESA action....[M]ost
jurisdictions hold that visitation interference is not a defense in a
URESA action [citations] because courts lack subject matter jurisdiction
under URESA to terminate or modify child support due to interference
with visitation. (In re Marriage of Truax, supra, 522 N.E.2d 402.) URESA
therefore limits the court's jurisdiction to `the single issue of
enforcement of support.' Id.
[94] "The rationale for the limited subject matter jurisdiction is
the need for a streamlined mechanism to enforce support obligations
without consideration of other issues which would cripple those
enforcement efforts. Id." (Charlesworth v. State of California, supra,
793 P.2d 411, 413, italics added.)
[95] "URESA makes no mention of visitation matters. Its scope is
expressly limited to support. The act contemplates ex parte proceedings
where only duties of support are adjudicated. It does not provide for
adversary proceedings where other matters are to be decided....[] Since
the Michigan statute contains no provision suggesting that an adversary
proceeding was contemplated by the Legislature, we are convinced that a
streamlined process focusing solely on the issue of support was
intended. The lack of due process protections for the absent custodial
parent compels this conclusion." (Brown v. Turnbloom, supra, 280 N.W.2d
473, 475.) "The purpose of the URESA is to improve and extend by
reciprocal legislation the enforcement of duties of support. K.S.A.
23-451. The goal sought by this legislation is to provide a prompt,
expeditious way of enforcing the duty to support minor children without
getting the parties involved in other complex, collateral issues. The
act specifically declares that the remedies therein provided are in
addition to and not in substitution for any other remedies. [Citations.]
Nothing in the act allows the adjudication of child custody or
visitation privileges or other matters commonly determined in domestic
relation cases." (Patterson v. Patterson, supra, 581 P.2d 824, 825.)
[96] The unfortunate result of the majority holding is that any
parent seeking to enforce a support order after the child reaches
majority may instead have to litigate, and the court will have to rule
on, claims by non supporting parents that the plaintiff "actively"
concealed the child. In addition, assuming they will do so at all,
prosecutors in the responding state, on whom the obligation to represent
the plaintiff in RURESA actions is imposed (see Code Civ. Proc., form.
1680; Family Code 4831; RURESA 18), will be burdened with litigating an
issue RURESA did not intend to impose on them.
[97] The majority does not resolve the right to offer an "active
concealment" defense when enforcement of a support order is sought
during the minority of the child, and do not consider the impact of its
holding on the rights of public agencies who have provided support to
enforce assignments of the custodial parent's support rights. This
temporarily avoids more difficult questions, *fn13 but the failure to
face these issues adds uncertainty to what had been until now a
relatively clear statutory and, in California as well as other
jurisdictions, a vested, right. *fn14
[98] It also throws into confusion the rights of parents in other
states who seek to utilize the provisions of RURESA to enforce support
orders in California courts. Must they now travel to California to
answer noncustodial parents' claims that the child was "actively"
concealed? *fn15 Only time will answer this question or tell how the
courts of other jurisdictions will treat enforcement actions brought in
those courts by residents of California. *fn16 If, as is probable, those
courts refuse to entertain the "active concealment" defense, California
obligees will fare better in the courts of other jurisdictions than in
California.
[99] This cannot have been the intent of the Legislature when it
adopted RURESA. In former Code of Civil Procedure section 1694 of
theCivil Code (now recodified as Family Code section 4845), the
Legislature enacted verbatim the provision in Section 23 of RURESA which
specifies: "The determination or enforcement of a duty of support owed
to one obligee is unaffected by any interference by another obligee with
rights of custody or visitation granted by a court." (Italics added.)
California adopted the Uniform Reciprocal Enforcement of Support Act in
1953 (Stats. 1953, ch. 1290, 2, p. 2843) and adopted Civil Code, former
section 1694 as part of the 1968 revised act in 1970. (Stats. 1970, ch.
1126, 31, p. 2002.) The rule which the majority abrogate today was among
those created to "cure defects" and "plug loopholes" in the original
uniform act by establishing guidelines for the conduct of the trial in
cases in which there had been interference with visitation rights. (See
Prefatory Note to RURESA, 9B Uniform Laws Annotated 382, see also,
Comment, The Uniform Reciprocal Enforcement of Support Act (1961) 13
Stan.L.Rev. 901, 915-916 ["Since most support judgments are modifiable,
to allow for change in the circumstances of the parties, they are
enforceable only under the doctrine of comity, and are vulnerable to the
vagaries of public policy defenses."].) The Legislature, in adopting
section 23 of RURESA, was presumably aware of the purpose for which this
part of former section 1694 was added to section 23 in the 1968 revision
of the uniform act. By prohibiting consideration of visitation and
custody issues in a RURESA enforcement proceeding, the uniform act
clearly intends that "vagaries of public policy" such as that which the
majority seek to import into the California statute will not affect
those proceedings. Our Legislature enacted that statutory RURESA
limitation which the majority now abrogate.
[100] No other jurisdiction applying section 23 of RURESA recognizes
the distinction suggested by the majority between "active concealment"
and other types of "interference" with visitation and custody rights.
*fn17 This is undoubtedly because concealment of the child, whether
"active" or otherwise, is so clearly interference with visitation and
custody. The statute is directed to "any" interference, not simply
interference which does not involve "active concealment." The focus
should not be on the degree of interference, but instead on whether any
issue related to custody and visitation may be raised in a proceeding to
enforce payment of arrearages. As a result of today's decision, the
issue may be raised in any case, leaving to the decision maker the
determination of whether the defendant's evidence is sufficient to
establish "active concealment." A proceeding intended to be summary and
expeditious will thereby be transformed into a battle over lost custody
and/or visitation rights. The availability of the defense will encourage
and reward parents who fail to comply with court orders for support,
and, many years later when enforcement is attempted, but evidence may be
lost and memories dimmed, claim that the plaintiff "actively concealed"
the child.
[101] This is contrary to the purpose of the law and the intent of the
Legislature. It will burden enforcement courts and prosecutors with
hearings on issues that should be raised in the court having
jurisdiction over the initial support or custody and visitation
proceedings.
[102] The Arizona Court of Appeal recognized that a parent's exclusive
remedies for violation of visitation and custody rights lies in the
court which made the custody and support orders where the parent may
seek a contempt citation or modification of the support order. In State
ex rel. Arvayo v. Guererro (Ariz. Ct.App. 1974) 517 P.2d 526, the court
affirmed an order dismissing a URESA action to enforce support. The
court emphasized that the duty of support is not affected by
interference with custody and visitation rights, and noted that the
obligee had made consistent efforts to enforce his rights through the
judicial process before terminating support payments. Nonetheless, that
was not the reason the order for dismissal was affirmed. Rather, it was
affirmed because the court having jurisdiction over the support action
had modified the decree by terminating the support obligation until the
RURESA plaintiff agreed to honor visitation rights. To the same effect
is People ex rel. Winger v. Young (Ill.Ct.App. 1979) 397 N.E.2d 253, a
case in which, allegedly, the custodial parent had moved to another
state and kept the child's whereabouts secret. The court rejected the
proffered defense stating:
[103] "The proper remedy for the violation of visitation rights is a
petition for a rule to show cause why the non-complying party should not
be held in contempt. The duty to permit visitation is completely
independent of the duty to make support payments." (See also State ex
rel. Dewyea v. Knapp, supra, 674 P.2d 1104, 1106 ["If respondent desires
to enforce his visitation rights, modify the support obligations or
obtain custody of his children, then he must seek a forum that holds the
proper jurisdiction to take evidence and rule on these matters."]; State
ex rel. Southwell v. Chamberland, supra, 361 N.W.2d 814, 817 ["The law
has given the other parent a remedy to go into court for an amended
order."].)
[104] I believe that properly applied rules of statutory construction,
respect for the rule of law, and the importance of maintaining family
ties bar creation of an estoppel to seek payment of arrearages in a
RURESA action. A parent who does not use child locator services and seek
judicial sanction for termination of support payments should not be
permitted to claim years after discontinuing support payments that the
child had been concealed. I cannot join in what is so clearly a
departure from settled law _ a decision which usurps the prerogatives of
the Legislature; undermines otherwise uniform procedures for reciprocal
enforcement of support obligations; and, by making available an "active
concealment" defense, may encourage supporting parents to sever, rather
than attempt to strengthen, their parental bonds.
[105] I would reverse the judgment of the Court of Appeal.
[106] BAXTER, J.
***** BEGIN FOOTNOTE(S) HERE *****
[107] *fn1 In response to Justice Kennard's concurring opinion, we
note that the Court of Appeal rejected mother's argument that the
default judgment precluded raising the concealment defense at this time.
In conformity with California Rules of Court, rule 29.2(a), which states
that this court "may review and decide any or all issues in the cause,"
we granted review of only the issue concerning the viability of the
concealment defense, which was, indeed, the only issue raised in the
petition for review. The question of the effect of the default judgment
has not been briefed in this court (see Cal. Rules of Court, rule
29.3(c)) and, given the limited nature of the issue we are reviewing, is
not now before us.
[108] *fn2 In 1992, both Code of Civil Procedure section 1694 and
Civil Code section 4382 were repealed and made part of the new Family
Code, operative January 1, 1994. (Stats. 1992, ch. 162, 3, 6; see new
Fam. Code, 4845, 3556.) The Revised Uniform Reciprocal Enforcement of
Support Act (RURESA) has been renamed the Uniform Reciprocal Enforcement
of Support Act (URESA) for consistency with the usage of the National
Conference of Commissioners on Uniform State Laws. (Fam. Code, 4800, and
the Law Revision Commission Comments thereto.)
[109] *fn3 We have reviewed out-of-state authority and find it
inconclusive. In State ex rel. Southwell v. Chamberland (Minn. 1985) 361
N.W.2d 814, the court refused to recognize a concealment defense. But
there the concealment was for a far shorter period of time than here, a
governmental entity was seeking the arrearages, and the court did not
consider an estoppel argument. Closest on point is State ex rel.
Blakeslee v. Horton (Mont. 1986) 722 P.2d 1148, where both parties
agreed each would stay out of the other's life despite a court order
requiring father to pay child support. Fourteen years later, mother
sought the arrearages. In effect adopting an estoppel defense, the court
held that the mother should not be allowed to participate in the
nullification of the law, then later claim the benefit. "Although
legally the mother may have been correct in her claim for child support,
equity demands that her claim must fail." (Id. at p. 1151.) Mother's
unilateral actions in this case, if proven, compel a similar result. The
other cases cited by Justice Baxter generally only reiterate the
California rule stated in Moffat, supra, 27 Cal.3d 645, which we do not
question, or are even further removed from the issue here.
[110] *fn4 Hon. Roger W. Boren, Presiding Justice, Court of Appeal,
Second Appellate District, Division Two, assigned by the Acting
Chairperson of the Judicial Council.
[111] *fn5 Father signed this declaration in the name of Kenneth P.
Ali, a name father appears to have assumed when he moved to Arizona.
[112] *fn6 In a footnote, the majority defends its decision to ignore
the legal effect of the 1980 and 1990 judgments. (Maj. opn., ante, p.
___, fn. 4 [typed maj. opn., p. 4, fn. 4].) According to the majority,
the Court of Appeal "rejected mother's argument that the default
judgment precluded raising the concealment defense at this time[,]" but
the majority declines comment on this ruling because "the viability of
the concealment defense" was "the only issue raised in the petition for
review" and the only issue on which this court granted review. (Ibid.)
[113] The majority's view of the issue before this court is too
narrow. This court's review includes not only the issue specified in the
petition for review, but also "every subsidiary issue fairly included in
it." (Cal. Rules of Court, rule 28(e)(2).) Thus, threshhold issues
concerning mootness, standing, jurisdiction, scope of review, and the
like are always necessarily included within our scope of review. Because
the viability of the concealment defense in this case cannot be
separated from the procedural context in which father seeks to assert
it, the effect of the 1980 and 1990 judgments is "fairly included" in
the issue on which this court granted review and thus properly before
this court.
[114] *fn7 Because the defense of estoppel is equitable in nature, the
trial court should consider all relevant circumstances, including any
circumstances that might tend to justify or excuse, in whole or in part,
the custodial parent's concealment. Mother's declaration contains
factual allegations that would be pertinent for this purpose. For
example, she states that in August 19, 1958, while the divorce
proceeding was pending, father was ordered to pay $75 per month as
temporary child support. Although fully aware of mother's whereabouts,
father made no effort to comply with the child support order and visited
his son only three times in the nine months following the child's birth.
[115] The interlocutory judgment entered on May 19, 1959, included
$698.50 in child support arrearages under the interim order, and it
required that father pay child support thereafter in the amount of $50
per month. In September 1959, father was adjudged in contempt for
failure to pay child support and sentenced to jail for five days.
Despite this sanction, he still did not pay support. In February 1960,
father gave mother a check for $50, but "it did not clear his bank."
After father was released from jail, he telephoned mother and told her
he would "take [their] son away from [her] and [she] would never see him
again," and also that he "would move to Mexico where [she] would not
find him if [she] did not leave him alone." Mother took this threat
seriously and thereafter "always took great efforts never to let [the
child] be alone." Mother knew that father's mother is a native of Mexico
and had funds to help father relocate to that country. On another
occasion, in early 1961, father asked mother "not to bother him for a
few years while he attended school," and he told her "that he expected
to get an inheritance when he became 35 years old ...and that he would
pay child support then." (Elsewhere mother alleges that father was 19
years old in 1958. If so, he would not have been 35 until 1974, just
four years before mother commenced her collection efforts.)
[116] If the trial court finds that mother intentionally concealed her
whereabouts from father, it should also consider the truth of mother's
allegations that father had a history of not paying child support, that
he had threatened to abduct the child, and that he had asked mother to
defer enforcement of the support obligation until he turned 35 in 1974.
Nothing in the majority opinions suggests that facts such as these would
be irrelevant to the court's exercise of its equitable powers.
[117] *fn8 Further statutory references are to the Family Code unless
otherwise indicated.
[118] *fn9 It is not clear to me how a parent who is unable to locate
a child is able to determine that there has been "active concealment" or
at which point concealment becomes or ceases to be "active."
[119] *fn10 Section 4612: "An obligor-parent alleged to be in arrears
may use any of the following grounds as a defense to the motion [for
deposit of assets] or as a basis for filing a motion to stop a sale or
use of assets under section 4631:
[120] "(a) Child support payments are not in arrears.
[121] "(b) Laches.
[122] "(c) There has been a change in the custody of the children.
[123] "(d) There is a pending motion for reduction in support due to a
reduction in income.
[124] "(e) Illness or disability.
[125] "(f) Unemployment.
[126] "(g) Serious adverse impact on the immediate family of the
obligor-parent residing with the obligor-parent that outweighs the
impact of denial of the motion or stopping the sale on obligee.
[127] "(h) Serious impairment of the ability of the obligor-parent to
generate income.
[128] "(i) Other emergency conditions."
[129] *fn11 Montana recognized a visitation-related equitable defense
in a RURESA action in State ex rel. Blakeslee v. Horton (Mont. 1986) 722
P.2d 1148. That case is easily distinguishable, however, as the basis
that the defense was an agreement between the parents, made 14 years
before the RURESA action and complied with by both parties, in which
wife agreed not to enforce the support order and husband agreed not to
attempt to enforce his visitation rights.
[130] *fn12 If the court in which the RURESA proceeding is pending in
the court with continuing jurisdiction over the dissolution and/or
custody proceedings, an interference with custody or visitation rights
may be raised if notice is given that the issue is to be litigated. This
is permitted only because jurisdiction exists independent of RURESA,
however. (See Watkins v. Springsteen (Mich.Ct.App. 1980) 301 N.W.2d 892,
895.)
[131] *fn13 The question of assigned rights is particularly important
since, as a condition of receiving federal aid for the Aid to Families
with Dependent Children Program, a state must require the custodial
parent "to assign the State any rights to support from any other person
such applicant may have (i) in his own behalf or in behalf of any other
family member for whom the applicant is applying for or receiving aid,
and (ii) which have accrued at the time such assignment is executed;
...." (42 U.S.C. 602, subd. (a)(26)(A).)
[132] If the exception to enforcement rights created by the majority
extends to the assignee, as would be the case in most assignments since
an assignor may not assign any greater rights than he or she has, the
impact of the holding proposed by the majority could be to take
California out of compliance with the Social Security Act and endanger
grant in aid funds now being provided by the federal government.
[133] Additionally, if a county furnishes support for a child, "the
county has the same right as the child to secure reimbursement ...."
(4002, subd. (b).) The majority opinion does not address the impact of
its "active concealment" based estoppel on the right of the county to
collect arrearages.
[134] *fn14 See Dorsey v. Dorsey, supra, 408 N.E.2d 502, 504:
"Initially, we note that child support arrearages constitute a vested
right under Illinois law and are specifically enforceable under URESA.
[Citations.] Also, even after a child reaches majority, the custodian
does not lose her right to recover arrearages which accrued at the time
of the child's minority." Accord, Dept. of Health & Rehab. Serv. v.
Bachtal (Fla.Ct.App. 1988) 517 So.2d 787, 788; Johnson v. State
(Ga.Ct.App. 1983) 306 S.E.2d 756; Ackerman v. Yanoscik (Tex.Ct.App.
1980) 601 S.W.2d 72.
[135] *fn15 Section 4834 permits submission of evidence by deposition
or personal appearance. Deposition testimony by the obligee is
manifestly inadequate if the obligor offers the "active concealment"
defense in person unless the proceedings are continued after the
obligor's testimony to permit the obligee to respond in a deposition.
[136] *fn16 See Brown v. Turnbloom, supra, 280 N.W.2d 473, 474: "The
act does not contemplate that the custodial parent come to the
responding state to defend against claims arising from other domestic
relations matters. Aggrieved non custodial parents should return to the
state of divorce to adjudicate other matters."
[137] *fn17 Minnesota has expressly rejected the distinction. "However
sympathetic one may be to Chamberland's difficult position, the statutes
do not appear flexible enough to accommodate his appeal. Although
Southwell did not inform Chamberland of her location, and in fact may
have purposely concealed her location, so that Chamberland did not know
where to send the payments, this `wrongful conduct' does not take this
action out of the purview of the statute nor the precedence of case
law." (State ex rel. Southwell v. Chamberland, supra, 361 N.W.2d 814,
817.)
***** END FOOTNOTE(S) HERE *****
[Editor's note: Illustrations from the original opinion, if any, are
available in the print version]
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19940509
1994.CA.247