Dad’s Troubles Mount for Unpaid Child Support
Child support is one of those obligations that just does not go away. We learned that lesson again Friday, Nov. 20, when the California Court of Appeal –in the case of Marriage of Sawyer— reversed a trial judge for basically waiving $28,890.00 in past due support that had been ordered in a Minnesota court.
In this case, the husband (or James) got divorced in Minnesota in 1989. He was ordered to pay $1,000.00 in child support to the wife (or Rosemary). There were two children of the marriage.
Some years later, James moved to California. Although the kids initially stayed in Minnesota, one of them came and lived with James for 13 months, starting in June 1993. Five years later, the other child joined James in California and lived with him for several years.
If James had filed a motion to change custody based on where the children were living, the child support charges would have ended or basically been substantially lowered. But, as the California appeals court stated, even when the second child moved in with him, “James did not then seek a modification of the ongoing child support order in the Minnesota court”.
In 2001, a Minnesota judge held a hearing on the child support issue with respect to James and Rosemary. The judge ordered Rosemary to pay James child support going forward but found James was in arrears for unpaid earlier support to the tune of $89,582.15.
In order to make it easier for Rosemary to collect on this sum, the 2001 Minnesota order was “registered” in California. James went back to Minnesota in 2009 and challenged the 2001 order. That did not work, so he appealed. The appeals court rejected James’s efforts, noting that he was merely attempting “’to relitigate an issue that was resolved eight years ago by the district court’”. By this time, according to the Minnesota trial judge, James’ arrears had gone up to $98,476.19.
The 2009 order was then “registered” in California, making it easier for Rosemary, who was being helped by the California Department of Child Support Services, to collect on the arrears. But there was “no evidence that James contested or took any court action in California in connection with the 2009 registration”.
In 2018, a new Minnesota order was registered in California. This order stated James now owed $139,990.21 in child support arrears. This time James requested a hearing, which was held on December 18, 2018. At that hearing, the California judge found that the Minnesota order was signed on February 13, 2001 in the amount of $89,582.15 and was “’subsequently registered in California’”. But the judge also calculated –or backed out—the child support for the months when one or both children were living with James and not with Rosemary, as had originally been envisioned. In so doing, the judge ruled that $28,890.00 in arrears was “stayed on equitable grounds during periods of time father had sole custody of the children”.
The California Department of Child Support Services (“DCSS”) appealed as to this reduction and won. The California Court of Appeal noted that the case was governed by a 1997 legislative scheme known as the Uniform Interstate Family Support Act (“UIFSA”) which governs child support enforcement when more than one state is involved. Under UIFSA, when an order from another state is registered in California, the non-registering party has 20 days after being sent a notice of the registration to request a hearing to contest the validity of the out-of-state order. If the 20-day deadline is missed, the out of state order is “confirmed by operation of law”. Even if a request for hearing is timely made, there are limited defenses to the other state’s order such as the other state’s lack of personal jurisdiction when it made the order; or that payment in full or in part had been made in satisfaction of that order.
The DCSS’ argument was simple: James failed to timely challenge the 2005 and 2009 registrations in California. The Court of Appeal conceded that “as general (sic) matter under California family law, California courts may apply an equitable approach and deny the enforcement of arrears when the parent otherwise contributed to the care of the child such as providing a home for the child”. But the justices also noted that “[i]n exercising its discretion, a trial court may not ignore express statutory requirements. Merely by citing to equitable principles, the trial court did not gain the authority to do indirectly what the applicable statutes prohibit it from doing directly”.
Not only was the law not on James’ side; neither were the facts. The Minnesota order at issue was issued following a hearing on January 29, 2001. To put this in perspective, the original arrearage determination was made in Minnesota about eight months before the Sept. 11, 2001 terrorist attacks. Surely, regardless of whose side you might be on, you would agree that 2001 is too long ago to allow somebody to reargue child support. Indeed, the 2001 hearing was based on the original divorce decree issued 12 years earlier, in January 1989, 31 years ago from the present time.
In cases not involving UIFSA, California judges are sometimes able to award an “equitable offset” for periods of time when the parent who was supposed to pay child support actually was the one providing care. But UIFSA does not allow this discretion, especially if the order is from out of state; is registered in California; and the debtor waits more than 20 days from notification of registration before filing a motion to contest the out of state order.
The lesson is that when parents decide to change custody, the parent ordered to pay child support must immediately file a motion for a new determination of child support based on the alteration of the custody arrangement that existed when the original or last child support order was made. The other way to handle the situation is to write up a stipulation and file that with the court. This will work if both parents are on the same page. But an email (or a text) will not suffice.
Rosemary did not deserve child support when one or both children were not living with her. But James did not do anything about this situation. As an aside, even the California judge who was reversed agreed that aside from the $28,000.00, James was substantially behind on his support – for reasons that were not directly addressed in the 18-page decision.
Adding to James’ misery, the amount of unpaid support accumulates interest under California law. The rate is 10 percent, and the interest is simple, not compound. But the amount must be astronomical after all these years. (However, in this case, Minnesota’s interest rate [whatever that is] was used in the trial judge’s 2018 calculation of what James owed.)
You may stop reading if you wish, but for those of you wishing to get into the weeds, the Court of Appeal could have also ruled that because Minnesota had earlier decided what James owed and what he did not, res judicata would have prevented California from disturbing the findings and rulings of the Minnesota court system. But the justices felt that they did not need to go there because of the 20-day rule that had lapsed, and which made any other argument moot.
It is also interesting to note that this is the second published family law decision in California in the last month where the Court of Appeal has reversed a decision made by a more sympathetic trial judge in a case involving the DCSS.