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WHEN DO YOU OWE WHAT YOU OWE? RETROACTIVE CHILD SUPPORT ARREARAGES
 
By
Shelley L. Albaum,
Harold J. Cohn,
Seth D. Kramer
Be advised this article discusses California Law
 
It is not uncommon for litigants in family law cases to find out that, unbeknownst to them, they owe substantial amounts of money in either spousal or child support arrearages. The usual response is "how did this happen"?
 
The simple answer to this question as to child support is found in this state's public policy to maximize the collection of child support (See Family Code 4053 and 4071) coupled with the aggressive tactics of the district attorney's offices throughout the state. The district attorney is the agency entrusted under Family Code 4002 and Welfare and Institutions Code 11350 and 11475.1 to collect child support. There has been a "split" in policy between district attorney's offices throughout the state as to whether or not all child support orders could be retroactive to the date of commencement of the proceeding (i.e. the filing of a paternity action or a complaint to establish child support) or from the date the first motion or Order to Show Cause formally requesting a temporary order from the court was filed. Over the last two years there have been two conflicting decisions from appellate districts in the State of California. One of the cases held that it was appropriate for the district attorney's in non-welfare cases to commence child support orders back to the date of the filing of the underlying complaint to establish parentage. The other decision held that it was only proper to relate the child support back to the date of the filing of the motion or Order to Show Cause specifically seeking child support.
 
The California Supreme Court recently resolved these case conflicts in its decision in the County of Santa Clara v. Perry (18 Cal.App.4th 435; 75 Cal.Rptr.2d 738 (1998)). (The original Perry case was consolidated with County of Santa Clara v. Hernandez and County of Riverside v. Keegan (54 Cal.App.4th 274; 62 Cal.Rptr.2d 684 (1997)), the other split decision.) Both cases were paternity actions.
 
The Supreme Court made a "bright light" ruling that jurisdiction may only go back to the filing of a motion specifically requesting child support. The rationale for this holding is that the actual petition and complaint establishing parentage does not provide sufficient notice of the request for child support to comport with due process. The court stated, at page 742, as follows:
 
"The fact that an opposing party has actual knowledge of a pending court proceeding does not excuse the moving party from the requirement of giving the written notice required by statute (citing cases)."
 

A complaint and a noticed motion are quite distinct. The complaint used in a paternity proceeding does not satisfy the statutory requirements for a noticed motion.

 
Interestingly enough, the Supreme Court did not reference an earlier appellate decision of In re Marriage of Lapel (51 Cal.App.3d 116 (1990); 276 Cal.Rptr 290). Although not cited, this appellate decision had reasoning similar to Perry in a dissolution of marriage action that proceeded by default. A custodial parent was awarded custody and did not "check the box" on the petition for dissolution of marriage that requested child support in the "relief" portion of the petition for dissolution. However, at the default hearing, the court made an order for child support of $100 per month.
 
The Respondent, having no notice that this request was ever made, was ultimately "hit" for 16 years of arrearages. The appellate panel found that this child support order had been made inappropriately without notice and therefore lacked due process and was vacated.
 
In response to Lapel, the judicial council modified the petition for dissolution of marriage form which now has been amended to include paragraph 8 of the form which states as follows:
 
"If there are minor children of this marriage, the court will make orders for the support of the children without further notice to either party. A Wage Assignment will be issued."
 
New legislation effective January 1, 1999 regarding child support modification has also added an interesting wrinkle to the ability to retroactively affect modification of support orders. Family Code 3653 provides that an order modifying or terminating child support due to the unemployment of one of the two parties shall be modifiable retroactively to the date of filing the notice of motion. It is no longer a discretion call of the court to make the order retroactive. Subsection (c) of 3653 provides that any overpayment from the date of filing of application until the hearing of child support, despite the retroactivity, shall not be reimbursed to the obligor. The Legislature has made a clear and definitive statement that upon filing of an Order to Show Cause to modify support the obligor should attempt an informal modification pending the hearing or lose the possibility of getting the monies reimbursed and all the benefit of the retroactivity.
 
In contrast to child support the court appears to have taken a different approach to the issue of retroactivity in spousal support. In In re Marriage of Wells (206 Cal.App.3d 1434 (1998); 254 Cal.Rptr. 185) In Wells a 14 year marriage was dissolved in a default proceeding. The Petitioner did not request spousal support or retention of jurisdiction for same in the Petition. However, the Respondent (the wife) appeared at the default hearing and, over the objection of the Petitioner, the court retained jurisdiction over the issue of spousal support. The appellate court upheld this ruling due to the fact that the wife, the supported spouse, had in fact appeared at the default hearing and as such the due process and notice issues were somewhat obviated and the overwhelming public policy in favor of the ongoing obligation that spouses have toward each other for support (In re Marriage of Morrison 20 Cal.App.3d 437; 143 Cal.Rptr. 139 (1978); and Burtnett v. King 33 Cal.App.2d 805; 205 P.2d 657 (1949)). It is interesting to note that in Wells the moving party was the husband, the supporting spouse, who was attempting by way of a default judgment to terminate his exposure for spousal support to the wife, the supported spouse.
 
With regard to the issue of retroactivity of temporary/pendente lite orders of spousal support, the appellate courts have been more aggressive in the retroactive treatment of same and have used it on at least two occasions as a essentially a sanction for fraudulent and/or dishonest behavior towards the court and the other party. In In re Marriage of Dick (15 Cal.App.4th 144; 18 Cal.Rptr.2d 743 (1993) and In re Marriage of Economou (Economou I) 224 Cal.App.3d 1446; 274 Cal.Rptr. 473 (1990)) appellate courts upheld trial courts that allowed retroactive set asides of support orders as a result of frauds in the presentation of income issues by the supporting spouse, in both cases the husband. In Economou the court set aside both the child and spousal support orders clearly indicating that the orders could be made retroactive to the date of the original Order to Show Cause; while in Dick, the trial court was affirmed in making the spousal support orders retroactive to the date of filing of the petition for the spousal support order which was the only order at hand in that particular case.
 
Although commentators have indicated that Dick may be an example of bad facts making bad law (see Adams California Family Law Practice, 13th edition, volume 2, page N/5) it is clear that finding out when you owe what you owe may depend significantly on who you owe, whether to your children or to your ex-spouse.