Donald F. Conviser, CFLS, of Warner Center Law Offices in Woodland Hills, serving Divorce and Family Law clients in Los Angeles and Ventura County for over 35 years, offering a fee confidential consultation with people with Family Law or Divorce questions or issues (818) 880-8990, herein addresses proposed arguments that might be effective to diminish the consequences of a JACKSON or TRAINOTTI claim. Those two cases held in effect that where custody of a child changes, the former custodial parent's claim for child support arrearages that accrued after the change of custody may, in an exercise of the Court's equitable discretion, be deemed discharged via the new custodial parent having supported the child at his/her home.
I propose that the Court should consider more than just the change of custody in determining the degree, if any, to diminish a claim for child support arrearages, as hereinafter addressed.
Marriage of JACKSON (1975) 51 Cal.App.3d 363 is a case addressing, among other things, a writ of execution levied by Gail on Thomas's bank account for child support arrearages due to Gail (the initial custodial parent) for a period of time after the parties' minor daughter had, with Gail's consent, commenced residence with Thomas. Thomas moved for an order recalling and quashing the writ of execution, and the trial court denied his motion, declaring that his motion was an improper attempt to retroactively modify child support. On Thomas's appeal, the appellate court held the trial court's ruling to be based on erroneous reasoning that it had no discretion to grant the motion, and remanded the case with instructions for the trial court to reconsider the matter, stating:
"While it is true that an order for child support may not be retroactively modified and that accrued arrearages are treated like a judgment for money, it must be remembered that such orders are an exercise of the court's equitable power and are designed to compel satisfaction of the child support obligation apart from the marriage status. The obligation is to the child and not to the mother. ... while a court may not retroactively modify accrued payments, it could deny enforcement of such a judgment on equitable grounds. Hence, contrary to the trial court's reasoning, quashing the writ of execution is separate and distinct from retroactive modification of the original order. ... the trial court has, under (such) circumstances, the right to recall the execution and allow the enforcement of the judgment, only to the extent of the husband's equitable obligation to pay. ... the trial court now has discretion to determine in each case whether execution is an appropriate remedy for enforcing its order. ... Once the writ of execution has issued, however, the judgment debtor must show why the writ should be quashed. One reason which the court could consider in exercising its equitable discretion would, of course, be that the debtor has satisfied the obligation."
The JACKSON Court concluded that the trial court could have been well within its discretion in recalling and quashing the writ of execution or permitting only partial enforcement on the basis that Thomas had directly discharged his obligation or on the basis of equitable considerations.
In Marriage of Trainotti (1989) 213 Cal.App.3d 1072, Roberta was awarded custody of the parties' minor son, but three years later, the parties agreed that Michael would assume custody of their son, and he did so. Subsequently, the parties submitted the issue of child support arrearage allegedly due Roberta for the period during which Michael had custody of their son. The trial court concluded that it had no jurisdiction to offset or discharge the accrued child support liability during the period the parties' child was residing with Michael. Michael appealed.
The appellate court found that the trial court's ruling was based on its restrictive reading of the modification retroactivity statute [which allows modification only retroactive to the date of filing of the OSC to modify]. It addressed the JACKSON case as a nearly identical case, summarized its holding noted above, and addressed a subsequent OKUM case in which the appellate court held that a trial court possesses the discretion to permit only partial enforcement or to quash, in toto, a writ of execution directed against a parent in arrearage who, during the period in question, has had the sole physical custody of the child.
The TRAINOTTI court held that the applicable statute provides the trial court with discretion to determine the appropriate remedy for enforcing the order regardless of the procedural context in which the issue was raised. It stated that the trial court should have considered whether the debtor had satisfied or otherwise discharged the obligation imposed by the original order [citing JACKSON], and that such consideration does not violate the prohibition against retroactive modification of the support award. It held that the trial court erred by refusing to consider whether Michael had satisfied his obligation by furnishing his son, with the approval of Roberta, a home and support that was equal to or in excess of the court-ordered amount.
As noted above, I propose that the Court consider more than just the change of custody in determining the degree, if any, to diminish a claim for child support arrearages in such a case.
Child support is based on the parties' respective incomes and ther respective custodial timeshares. In TRAINOTTI's holding that the trial court erred by refusing to consider whether Michael had satisfied his obligation by furnishing his son a home and support equal to or in excess of the court-ordered amount, the Court, and perhaps Robert's attorney, ignored the possiblity that, by virtue of the parties' respective incomes and custodial timeshares, some guideline child support [albeit in an amount lower than the former order] might still have been payable by Michael to Roberta for the period after Michael received his son's physical custody.
In that event, shouldn't the Court have calculated a new, reduced amount of child support that would have been due from Michael to Roberta and enforced Michael's child support obligation to that extent, instead of just comparing the amount of Michael's child support obligation to [the value of] his furnishing a home and support to his son? Or would that be considered an impermissible retroactive modification of child support? I would think that the court, in that event, would have discretion to partially enforce the child support arrearage in an exercise of its equitable powers, instead of turning the arrearage switch "off" upon hearing that de facto custody had changed.
What if the parties had 50/50 custody, and thereafter the father received full custody of their child pursuant to agreement with the mother exercising some visitation [for example, 20%]. In that event, the father's initial obligation had been to provide 50% of the childrens' living expenses during the 50% of the time when the children were living with him, and payment of a certain amount to the mother as child support.
After custody changed to father, he gets only 30% more custody. A guideline calculation of child support would be appropriate under those circumstances, based on the parties' respective incomes and custodial timeshare, to determine how much support the father would still owe to the mother, so that instead of fully discharging the father's obligation for child support arrearages to the mother in toto, the Court would discharge only part of that obligation.
What if father had historical unclean hands in the matter? What if the mother were mentally impaired and the father had manipulated her into not dealing with the attorney her family had hired to represent her in the divorce and had taken advantage of her by "negotiating" an unfair Marital Settlement Agreement with the mentally impaired mother, who had no clue what her rights were? What if the father had cheated the mentally impaired mother out of fair child and spousal support by understating his income and overstating her income? What if the father had been ordered to pay for health insurance for the mentally-impaired mother for two years, but failed to pay? What if the reason for the change of custody was something that the father had unfairly done to the mother, rendering her emotionally distressed?
Would the court look beyond just child custody and child support in order to fashion an equitable remedy? JACKSON does address equitable considerations. Is "unclean hands" limited to a tunnel view by the court of the immediate issues, or can the court look at the whole picture of historical bad faith unconscionable conduct?
In Keith G. v. Suzanne H (1998) 62 Cal.App. 853, the appellate Court stated: "Under California law, the trial court has discretion to determine the appropriate means of enforcing a judgment for child support. In exercising that discretion, the trial court can, and should take the equities of the situation into account." That opinion included a cite: "These are some of the dirtiest hands we have seen. He who seeks equity must do equity." The appellate court stated: "After weighing the equities, the trial court wisely fashioned a commonsense remedy that does not harm B. and does not reward father for his recalcitrance. The overall policy of the law is fairness."
The Family Law court sits in equity, and should exercise its discretion to arrive at a fair decision after weighing all the equitable considerations.
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