In California, court ordered child support usually ends when the child turns 18 or graduates from high school, whichever is later. But sometimes, the person paying support has to take affirmative steps to stop child support from being garnished from her or his paycheck, and in the case of Marriage of Saraye (2024), filed on November 1, 2024, that did not happen.
In Saraye, the child support obligation of the husband (“David”) ended in 2001 because that is when the child he had with the wife (“Lois”) aged out. There had been a wage and earnings assignment order served on David’s place of employment, which had resulted in the garnishment each week from David’s paycheck for both child support (and spousal support) consistent with the support amounts ordered in the parties’ 1992 judgment.
Apparently, the spousal support was supposed to end in 1995, just three years after the divorce, and so David successfully filed a motion with the court to have the spousal support portion of the garnishment stopped.
But the earnings assignment order for child support was supposed to end in 2001 when the child turned 18. But it remained in effect until 2008, seven years after it should have stopped when the child turned 18 and then graduated from high school. 13 years after that, in 2021, David filed a motion to “determine overpayment of child support” in the amount of $46,061.55 plus interest. He also asked for attorney fees because he was forced to file the motion based upon Lois’s over-collecting of child support.
Lois argued that David had waited too long to bring this motion and won; and that she had used the money for the child’s college education. Accordingly, she won and so she got to keep the $46,061.55.
First, the trial judge noted that David had filed a request to stop the spousal support portion of the wage assignment, and so he knew the process for stopping garnishments, which made his failure to timely act to stop child support inexcusable. The court was not persuaded by David’s argument that he and his new wife had gone through health problems. The justices said he could have hired a lawyer to help him. Interestingly, though, the Court made Lois pay David $3,000.00 in attorney fees, finding that she had received a windfall which was not fair and that she had “unclean hands” because she knew she was receiving money that she did not deserve to receive.
Second, the Court of Appeal found that David could not rely on Family Code section 4007 to gain a reversal. Section 4007 allows a court to place a provision in a family law judgment that when a contingency occurs, the recipient of support –either spousal or child—must tell the payor so that appropriate action can be taken to stop the order for support. For example, there could be a section 4007 order that when the recipient remarries, he or she tell the other side because remarriage automatically ends spousal support. But this argument failed, probably for two reasons. The judgment did not include any section 4007 provisions, and that was because the lawyers who negotiated the judgment which was approved by the judge did not put a section 4007 provision in the document. Had that provision been included, David might have won because section 4007 says that if a person is required to give notice of the happening of an event but fails to give that notice, the overpayment must be refunded. Second, while a payor of support might not know about, say, the remarriage of the former spouse, a person does not need the benefit of section 4007 to know when under California law the child has aged out.
The Court also addressed the issue of the wage assignment. It found that the burden to stop the wage assignment is on the payor of support. This is because employers must honor the wage assignment until served with notice terminating the assignment order, pursuant to Family Code section 5235. The only exception is when the initial wage assignment order has a specific end date. The justices said that David was required to file a motion with the trial court to end the wage assignment. Or, he could have availed himself of the ex parte procedures which allow a person with one or two days’ notice to make a request to the judge without the need to file a formal motion, which might not be heard for numerous months and thus might not timely stop the wage assignment.
None of this prevented David from asking for a refund under Family Code section 3653 which governs whether a court should order a refund based on an overpayment. The Court of Appeal admitted that there was no precedent for what happens when “the obligor requests reimbursement of overpayment of child support 13 years after his child support obligation legally terminated”. Because Family Code section 3653, subd. (d) allows a court to consider, among other things, all “facts or circumstances that the court deems relevant,” it was within the court’s discretion to consider the length of time David had waited to make this request in court and to deny his request based on his 13 year delay from 2008 to 2013.
Although most judgments do not include a provision with respect to section 4007, this case makes a good argument for why they should. On the other hand, this case could be considered an outlier because nothing really explains why David waited so long when he knew, or should have known from his lawyer, that child support ended when the child “aged out.” And he knew about the procedure for stopping a wage assignment because he had used that procedure to terminate spousal support in 1995.