Comer v. Comer (14 Cal. 4th 504, 1996)

Opinion

GEORGE, C. J.

In In re Marriage of Damico (1994) 7 Cal.4th 673, 676 [29 Cal.Rptr.2d 787, 872 P.2d 787] (Damico), we held that a custodial parent’s concealment of his or her own whereabouts and that of the parent’s child until the child reached the age of majority may estop that parent from seeking payment of child support arrearages that accumulated during the period of concealment. We expressed no opinion in Damico as to whether a similar rule of estoppel would apply “when the concealment ends while the child is still a minor and might yet benefit from payment of the arrearages.” (Id. at p. 685.) Also, because Damico did not involve public assistance payments or the assignment of child support rights to a governmental entity, we expressed no opinion as to whether concealment by the custodial parent would estop a governmental entity, as assignee of the custodial parent’s right to receive child support payments, from obtaining reimbursement for public assistance payments made to the custodial parent. (Ibid.)

In the present case, which involves concealment by a custodial parent that ended while her children still were minors, as well as the payment of public assistance in the form of Aid to Families with Dependent Children (AFDC), the Court of Appeal held that such concealment estopped the mother from collecting child support arrearages from the father, and that Gila County, Arizona, as assignee of the mother’s rights, similarly was estopped from obtaining reimbursement from the father for AFDC payments made by the county to her.

This case thus presents the issues, noted above, that we explicitly declined to reach in Damico. As we shall explain, we conclude that a custodial parent’s concealment of both parent and child—a concealment that terminates when the child still is a minor—does not constitute a defense to an action brought on behalf of the child against the noncustodial parent for child support arrearages. We further conclude that where the custodial parent has obtained public assistance payments for the child, and has assigned the right to child support arrearages to the public entity providing such assistance, the conduct of the custodial parent in concealing the child from the other parent does not estop the public entity from seeking child support arrearages—or reimbursement for public assistance payments—from the noncustodial parent.

Accordingly, we reverse the judgment of the Court of Appeal and order the case remanded for the purpose of determining the amount of child support arrearages due and reimbursement owed for AFDC payments made.

I.

Donna Jean Comer (mother) and Gerald Lee Comer (father) were married in 1980. Later that year, mother gave birth to the couple’s first child, a son, and a second son was bom in 1983. The family lived in the State of Florida until approximately 1985, when financial difficulties caused them to consider relocating to the State of Arizona (where mother’s family resided). Mother and the children moved to Arizona while father remained in Florida to complete some business. He planned to join his family in Arizona but instead was served with notice that mother had obtained the dissolution of their marriage by default judgment in March 1985 in Gila County, Arizona.

The default judgment awarded custody of the children to mother, subject to “reasonable visitation” by father, which the decree of dissolution of marriage defined as “[a]ny time [father] can get out here [to Arizona] or can afford to bring them out there. No more than 2 weeks at any one time.” The judgment also ordered father to pay monthly child support of $350 for each child, for a total of $700 per month. Mother did not provide father with her new address, and instructed her family not to disclose her whereabouts to him.

Although father was served with copies of the orders granting dissolution and child support, he failed to make any monthly child support payments during the period between the dissolution of his marriage in March 1985, and September 1992, when he paid $100. In October 1992, he paid $300. At some point during this seven-and-one-half-year period, mother applied for, and began receiving, AFDC payments. As a condition of providing this public assistance to mother, Gila County, Arizona, pursuant to federal statutory mandate, required mother to assign to the county her rights to all current and past due support. (See 42 U.S.C. § 602(a)(26)(A).)

Father made no payment in November 1992. Later that month, mother commenced these proceedings in Gila County, seeking current child support and arrearages. Because father had moved to Orange County, California, Gila County (acting on mother’s behalf) transmitted its petition—seeking enforcement of the existing child support order against father, collection of $29,300 in accrued child support arrearages, and recoupment of $35,096 in AFDC benefits—to the Orange County Superior Court, pursuant to the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), now known as the Uniform Reciprocal Enforcement of Support Act (URESA). (See Fam. Code, § 4800 et seq.; prior to 1994, these provisions were found at Code Civ. Proc., former § 1650 et seq.) The State of California, acting as the “responding state” (Fam. Code, § 4802, subd. (i)), and represented by the Orange County District Attorney’s Office Family Support Division (Fam. Code, § 4831), filed the petition pursuant to Welfare and Institutions Code sections 11350, 11350.1, and 11475.1, to obtain the relief

Father filed an answer that denied all allegations set forth in the complaint and raised numerous affirmative defenses, including mother’s “deliberate[] conceal [ment of] her whereabouts and the whereabouts of the minor children,” fraud, estoppel, waiver, laches, and the statute of limitations. Father also submitted a declaration that set forth the details of his financial difficulties and his unpleasant relationship with mother.

The case was heard in August 1993. At the hearing, father elaborated upon the topics addressed in his declaration. He testified that, at the time of the marital dissolution, he did not submit any information to the court regarding his income, did not attend the dissolution proceedings, and had no idea upon what basis the court had ordered monthly child support in the amount of $700.

Father further testified that, during the initial period of separation in 1985, he communicated by telephone with his children when they visited the Arizona residence of their maternal grandparents. Although he was unaware of the precise location of mother’s residence from 1985 to 1992, he was in telephone contact with her. Whether the estranged couple discussed father’s child support obligations during these conversations is not disclosed by the record. In 1986 or 1987, father moved from Florida to California, stopping in Arizona to visit the children but, according to father, mother prevented the reunion. Father remained in touch with mother’s parents and knew that the children frequently stayed with them. He knew that mother’s parents and sisters lived in Phoenix, Arizona.

In 1988, father arranged through mother’s parents to travel from California to Arizona in order to spend a weekend with the children at the grandparents’ residence. Mother and the children, however, failed to appear at the residence at any time during the scheduled weekend. Father believed that mother had warned her parents that if they ever informed father as to the whereabouts of her or her children, she never again would permit her parents to see their grandchildren.

Father testified that he subsequently learned mother had remarried, but that he did not know her new married name. He did not contact law enforcement officials in an effort to locate her, because he did not believe they would help, and he stated he could not afford to retain the services of a private investigator. He did not consider using the Arizona court system to enforce his right of visitation with his children. Although he occasionally communicated with mother’s parents, he did not again speak directly with his children until September 1992, when his older son telephoned him. At that point, father learned of mother’s new name and the address where she and their children resided.

Father also described his persistent financial problems that stemmed from his difficulty in obtaining work as a flooring installer. He testified that, after remarrying, he and his new wife reported a gross income for the year 1992 in the amount of $53,628, of which approximately $20,000 was attributable to his wages. He added that, as of September 1992, he no longer possessed a contractor’s license, a circumstance that compelled him to perform less lucrative work as a handyman. He estimated that his gross monthly wages as of August 1993 were approximately $1,500, from which, by virtue of his self-employment status, he was responsible for business expenses of approximately $500.

Upon hearing father’s testimony, the court ordered him to pay a total of $371 in monthly child support for both children. With regard to the 11-month period that extended from mid-September 1992 to August 1993, when father was in contact with mother and their children, the court found that father owed support arrearages in the amount of $7,700, against which the court applied an offset of $2,748, for money paid by father to Gila County and for funds intercepted from his income tax refund, leaving a balance of arrears in the amount of $4,952. The court ordered that these arrearages be paid down at the rate of $50 per month. Rejecting an argument made by the prosecutor that father owed $64,396 for welfare reimbursement and support arrearages dating back to 1985, the court found that no support arrearages were due from March 1985 to September 1992, because during that period mother actively concealed her whereabouts and those of her children. The court reasoned that if father did not know mother’s address, he was prevented from sending her child support and could not effect personal service upon her—a circumstance that prevented him from obtaining either a modification of the support order or sanctions against mother.

On behalf of mother and Gila County, Orange County appealed from the court’s decision, contending that the defense of child concealment was neither established nor available. The Court of Appeal affirmed the judgment of the trial court, agreeing with the lower court that father had established mother’s concealment and holding that such concealment estopped Gila County, as mother’s assignee, from collecting child support arrearages and from seeking AFDC reimbursement. Thereafter, we granted the petition for review filed by the Attorney General on behalf of Orange County and mother.

II.

A.

In Damico, supra, 1 Cal.4th 673, we addressed the question whether a custodial parent’s concealment of herself and her child until the child reached the age of majority gave rise to a defense to an action by the custodial parent for child support arrearages. The case involved a couple who were married and became parents in 1958 and who dissolved their marriage in 1960. The judgment of marital dissolution ordered the father to pay child support, which he did for a short period of time. The father then stopped paying under circumstances disputed by the parties. In 1979, after the child had become an adult, the mother sued the father for child support arrearages. A default judgment was entered against him in San Francisco Superior Court the following year, determining that the father owed over $12,000 in child support arrearages and more than $10,000 in interest. In 1991, the Marin County District Attorney, acting on the mother’s behalf, filed a statement for registration of foreign support order, which the father moved to vacate. At a hearing to consider the question of arrearages, the father offered to prove that, during the period 1960-1979, the mother had concealed herself and the child from him. The trial court refused to consider the father’s “concealment defense,” declined to set an evidentiary hearing, and ordered him to pay the entire amount of arrearages plus interest. The Court of Appeal thereafter reversed the judgment of the trial court. (7 Cal.4th 673, 676-677.)

In affirming the judgment of the Court of Appeal in Damico, we held that a parent who has concealed a child until the minor reached adulthood may be estopped from seeking child support arrearages: “The custodial parent should not be allowed to make the payments impossible, then seek arrearages after the purpose of the judgment, payment of support for the benefit of the child, has been defeated. HD • • • [H We thus conclude that a custodial parent who actively conceals him- or 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. . . . [U 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. [Citations.]” (Damico, supra, 7 Cal.4th at pp. 684-685, original italics.)

B.

As noted above, the child in Damico already had reached the age of majority when the mother instituted her action to obtain child support arrearages. The concealment in the present case ended in September 1992, when the couple’s older child, then age 12 years, contacted his father. That child is now 16 years of age, and his brother is 13 years of age. Accordingly, we turn to the first issue that we left unaddressed in Damico—and that is presented here—namely, whether the mother’s concealment of herself and her children provides a basis for an estoppel defense to a claim for child support arrearages, when the concealment has ended before the children have reached the age of majority.

Family Code section 3556 prescribes: “The existence or enforcement of a duty of support owed by a noncustodial parent for the support of a minor child is not 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.” (See also Fam. Code, § 4845, subd. (b) [“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.”].)

We held in Moffat v. Moffat (1980) 27 Cal.3d 645 [165 Cal.Rptr. 877, 612 P.2d 967] that, notwithstanding the arguable unfairness from the noncustodial parent’s perspective of requiring a noncustodial parent to continue making child support payments where the custodial parent has interfered with court-ordered custody or visitation rights, “in such circumstances the child’s need for sustenance must be the paramount consideration.” (Id. at p. 651.) We therefore concluded that deprivation of the noncustodial parent’s right to visit his or her child did not diminish that parent’s obligation to provide child support. (Ibid.)

In Damico, supra, 7 Cal. 4th 673, we held that the rule announced in Moffat, supra, 27 Cal.3d 645 did not apply when the custodial parent concealed parent and child until the child reached the age of majority. Under the circumstances presented in Damico, the mother was “seeking payment of the arrearages to herself, not to the child.” (Damico, supra, 7 Cal.4th at p. 685, original italics.) Observing that “[t]he harm mother did to the child by denying [his] father’s companionship and financial support should not now entitle her to arrearages, many years later, that can no longer benefit the child [,]” we concluded that the mother was estopped from seeking child support arrearages. (Ibid.)

In the present case, in contrast to the facts presented in Damico, the concealment terminated when the children still were minors and might benefit from father’s payment of child support arrearages. This distinction is a significant one, because, in contrast to most adults, children (particularly those in their early years) in fairness cannot be expected to raise themselves and pursue an education without the financial support of responsible adults. As we observed in Moffat, supra, “the child’s need for sustenance must be the paramount consideration.” (27 Cal.3d 645, 651; see also In re Marriage of Lippel (1990) 51 Cal.3d 1160, 1172, fn. 4 [276 Cal.Rptr. 290, 801 P.2d 1041, 5 A.L.R.5th 1156] [“‘The single most important consideration in an action for support is the need of the child.’ ”]; Evans v. Evans (1960) 185 Cal.App.2d 566, 572 [8 Cal.Rptr. 412] [“In any proceedings involving custody and support it is axiomatic that the ‘court should always adopt the course that is for the best interests of the child.’ ”].) Accordingly, those considerations that we characterized as “the equities” in Damico are distinguishable from those found in the present case. (7 Cal.4th at p. 685.)

Our holding in Moffat, supra, 27 Cal.3d 645, that denial of rights to custody and visitation does not affect a parent’s obligation to provide child support, is controlling in the present case. It is well settled that a child support obligation “. . . runs to the child and not the parent. [Citation.]” (In re Marriage of McCann (1994) 27 Cal.App.4th 102, 108 [32 Cal.Rptr.2d 639]; see also In re Marriage of Ayo (1987) 190 Cal.App.3d 442, 449 [235 Cal.Rptr. 458] [“It is clear that the law imposes upon parents the obligation of supporting their children and the children’s right to such support cannot be limited or abrogated by their parents.”]; Williams v. Williams (1970) 8 Cal.App.3d 636, 640 [87 Cal.Rptr. 754] [“In essence, the parent, to whom such support is paid, is but a mere conduit for the disbursement of that support.”].) In Damico, we noted our agreement “in the abstract” with the principle “that the actions of one parent should not diminish the child’s right to support.” (7 Cal.4th at p. 685, original italics.) Reaffirming our adherence to this principle, we hold that a custodial parent’s concealment of himself or herself and the child, which concealment ends when the child still is a minor, does not establish a defense to an action, brought on behalf of the child, for child support arrearages.

The Attorney General contends that if the children were being supported by public assistance payments for any substantial period of time, it is certain their needs were being met at only a minimal level. Certain educational expenses, cultural opportunities, and access to various goods and services undoubtedly were not available to the children and, because of the apparently lengthy period of dependence upon public assistance payments, there exists a likelihood that there has been an accumulation of unmet needs.

In response, father reiterates that, had he known where to send child support payments during the years 1985-1992, he could have provided funds for the myriad of activities that could be considered to fall within the normal range of benefits for middle-class children. Because, due to mother’s concealment of herself and her children, father was unaware of the address at which they resided, he contends he should not now be required to pay child support arrearages for the period during which he did not know the whereabouts of his children.

We reject father’s position. We are unpersuaded that requiring father to pay his child support arrearages would be unjust in the present case. As the noncustodial parent who has not fulfilled his child support obligations, father “has had the use of the money in the past, but his child[ren]’s needs are in the present and surely exceed the amount of the current order for support.” (County of Orange v. Dabbs (1994) 29 Cal.App.4th 999, 1005 [35 Cal.Rptr.2d 79].)

Father’s contention that an order requiring him to reduce his substantial arrearages will prevent him from making current support payments fails to recognize the statutory scheme that establishes the priority of the noncustodial parent’s current support obligations. Payments that exceed the court order for current support obligations are to be applied first to interest and then to any arrearages owed. (See Code Civ. Proc., § 695.221.)

On October 20, 1994 (after the trial court’s judgment was affirmed by the Court of Appeal in the present case, but before mother filed her petition for review), President Clinton signed into law the Full Faith and Credit for Child Support Orders Act, 28 United States Code section 1738B (section 1738B or FFCCSOA),which requires that state courts give “full faith and credit” to child support orders issued by sister states. FFCCSOA requires that “[t]he appropriate authorities of each State . . . [H (1) shall enforce according to its terms a child support order made consistently with this section by a court of another State; and [^Q (2) shall not seek or make a modification of such an order except” under certain limited circumstances that are not found in the present case. (§ 1738B(a) & (e).) “Child support” is defined to encompass “continuing support, or arrearages,” and “a child support order” includes “a judgment, decree, or order of a court requiring the payment of child support," whether it is “a permanent or temporary order.” (§ 1738B(b); see generally, In re Marriage of Lurie (1995) 33 Cal.App.4th 658, 673-676 [39 Cal.Rptr.2d 835]; see also Day v. Child Support Enforcement Div. (1995) 272 Mont. 170 [900 P.2d 296, 300]; Bednarsh v. Bednarsh (Ch.Div. 1995) 282 N.J.Super. 482 [660 A.2d 575]; Isabel M. v. Thomas M. (1995) 164 Misc.2d 420 [624 N.Y.S.2d 356]; Baton v. Brill (1995) 104 Ohio App.3d 826 [663 N.E.2d 421, 424-425].)

Because neither party cited FFCCSOA in the initial briefing submitted to this court, we requested, and the parties provided, additional briefing regarding the potential applicability to the present case of this recently enacted legislation. Having considered the supplemental briefing, we conclude, for the reasons that follow, that it is unnecessary for us to reach the parties’ contentions regarding the applicability of FFCCSOA.

Mother contends that FFCCSOA prohibits father from raising the defense that, because she allegedly concealed herself and their children from him, she is estopped from seeking child support arrearages. Because we conclude, as discussed above, that mother is not estopped from seeking payment of child support arrearages under the circumstances of the present case, we need not, and do not, decide whether FFCCSOA precludes father from raising this defense.

Father contends that, pursuant to the choice of law provisions of FFCCSOA (§ 17386(g)), the present case is to be decided pursuant to California law, and asserts that under California law mother’s concealment of herself and their children constitutes a “complete defense” to the present action for child support arrearages. As discussed above, however, we have rejected father’s premise that the defense of estoppel applies in the circumstances of the present case. Accordingly, we need not, and do not, reach father’s contentions regarding the proper interpretation of

Upon remand, the trial court is directed to order the payment of child support arrearages, crediting the child support payments made by father against the amount of arrearages owed.

C.

We turn to the remaining issue that we explicitly left unaddressed in Damico and that is presented here, namely whether the county or other governmental entity, as assignee of the custodial parent’s right to receive court-ordered child support arrearages, may be estopped from collecting such arrearages based upon the custodial parent’s concealment of himself or herself and the child.

As noted, this URESA proceeding to collect child support arrearages was brought by Orange County on mother’s behalf. URESA “provides for a reciprocal proceeding commenced in the ‘initiating state’ where the ‘obligee’—usually the mother or child—lives, and tried and enforced in the ‘responding state’ where the ‘obligor’—usually the father—lives or has property.” (Moffat v. Moffat, supra, 27 Cal.3d 645, 650, fn. 3.) Pursuant to URESA, “If a state or a political subdivision furnishes support to an individual obligee, it has the same right to initiate an action ... as the individual obligee for the purpose of securing reimbursement for support furnished and of obtaining continuing support.” (Fam. Code, § 4821.) “All duties of support, including the duty to pay arrearages, are enforceable by an action under this chapter. . . .” (Fam. Code, § 4822.)

The trial court found that father owed only $7,700 in child support arrearages, representing the 11-month'period between the date he learned of mother’s whereabouts in September 1992, and the date of the court hearing on the People’s URESA petition in August 1993—less payments made (and a tax refund intercept) in the amount of $2,748, for a remaining balance in the amount of $4,952. The trial court found that father was not obligated to pay any arrearages that accrued prior to his discovery of mother’s location in September 1992, because of mother’s concealment of herself and her children.

The Attorney General contends Gila County, Arizona, is owed $35,096 in AFDC reimbursement for public assistance paid to mother, in addition to $29,300 in child support arrearages that father owed for the period between the couple’s marital dissolution in 1985 and the commencement of AFDC payments to mother—the latter sum to be disbursed to mother, for the benefit of her children. In response, father contends that whatever claim the Attorney General has to reimbursement or arrearages for child support payments owed up to September 1992 is invalid because mother, as the “concealing” assignor, by reason of that concealment had waived her right to receive the payments owed by father and therefore lacked an enforceable right to assign them to the “innocent” assignee (Gila County, Arizona).

We reject father’s position. A county’s right to reimbursement for public assistance it has paid is well established, and, in fact, predates the 1975 enactment of federal and state regulations that placed the responsibility for enforcement of family support obligations upon the county’s district attorney. Family Code section 4002 (which, effective January 1, 1994, replaced, without substantial change, former Civil Code section 248, enacted in 1955) provides: “(a) The county may proceed on behalf of a child to enforce the child’s right of support against a parent. [