(Attached the highlighted copy of referred case)
|FROM:||The Legal Taxi|
|RE:||Retroactivity of child/spousal support where two proceedings filed.|
Retroactivity of child/spousal support where two proceedings filed.
Where first divorce proceeding was dismissed and a second one filed, is the child/spousal support retroactive to the date of the filing of the first proceeding?
Husband ("H") filed for dissolution of marriage against Wife ("W") in Orange County, California Superior Court on 9/26/07.H filed a Motion to Dismiss the dissolution proceedings on the basis of forum non conveniens. Apparently, H wanted to dismiss the proceeding so he could file a divorce action in Vietnam, where many of the marital assets were located. On May 7, 2010, the court dismissed the case, probably because W did not appear at the May 7th hearing. At this time, May of 2010, the H and W were litigation over child and spousal support only. The court had dissolved the marriage, and this dissolution was NOT affected by the May 7 dismissal. So, as of May 7, 2010, the parties were divorced. W s attorney filed a new proceeding for legal separation in July 26, 2010, not realizing that the parties were already divorced pursuant to the first proceeding. However, the issues of child and spousal support were still contested. It is settled in California that spousal and child support is retroactive to either the date the dissolution petition was filed or the date the party first filed a motion for child/spousal support. The issue I need researched is whether the court may order support retroactive back to the date of a prior divorce proceeding that was dismissed. The family court does have equitable powers, and I would think they could do so, but I need you to research this point. You may need to go outside California to find a case on point, but I am sure analogous fact patterns exist.
Standard Research Memo
Where first divorce proceeding was dismissed and a second one filed, is the child/spousal support retroactive to the date of the filing of the first proceeding?
California statutes and Case Law.
Based on the facts provided in this query it is pertinent to note that the Husband ("H") filed for dissolution of marriage against Wife in 2007. In May of 2010, the H and W were litigation over child and spousal support only. The court had dissolved the marriage; W s attorney filed a new proceeding for legal separation in July 26, 2010, not realizing that the parties were already divorced pursuant to the first proceeding. However, the issues of child and spousal support were still contested. Our research therefore addresses the issue of retroactivity of child support to the date first proceeding was filled.
The main issue to research is whether court can pass the order for the child/spousal support retroactive to the date when the first proceeding was filled. Section 4009 of the Cal Fam Code clarifies the issue of Retroactivity of order:
- An original order for child support may be made retroactive to the date of filing the petition, complaint, or other initial pleading. If the parent ordered to pay support was not served with the petition, complaint, or other initial pleading within 90 days after filing and the court finds that the parent was not intentionally evading service, the child support order shall be effective no earlier han the date of service.
The applicability of the section was discussed, in In re Marriage of SARRA and JOSHUA GOLDMAN. SARRA GOLDMAN, v. JOSHUA GOLDMAN, the court discussed:
- The current statute as amended in 1999, effective January 1, 2000, and again in 2000, effective September 28, 2000, states in relevant part, "an original order for child support may be made retroactive to the [*6] date of filing the petition, complaint, or other initial pleading." (Fam. Code, § 4009, as amended by Stats. 1999, ch. 653, § 8 and Stats. 2000, ch. 808, § 34.)
- * * * We need not decide the issue of which version of Family Code section 4009 governs because we conclude that even if Joshua s assumption were correct, the trial court had the authority to make child support retroactive notwithstanding the statute, based on equitable estoppel.
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- The question presented in light of the finding that the parties agreed to make child support retroactive notwithstanding the absence of a prior order to show cause or notice of motion is whether the trial court had the authority to implement that agreement. We conclude that the trial court had the authority to implement the agreement based on equitable estoppel. The doctrine of equitable estoppel may apply where a party lulls another party into a false sense of security and inaction. ( Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305, 61 Cal. Rptr. 661, 431 P.2d 245; Griffis v. S. S. Kresge Co. (1984) 150 Cal. App. 3d 491, 499, 197 Cal. Rptr. 771.) In the absence of a reporter s transcript, we presume that the evidence supports the trial court s conclusion that the elements of equitable estoppel are present and that "it would be inequitable in this instance to bar retroactivity of child support." Regardless of whether former Family Code section 4009 limited the trial court s authority or "jurisdiction" to award retroactive child support as Joshua argues, Joshua is estopped from asserting the statute. (Cf. In re Griffin (1967) 67 Cal.2d 343, 347, 62 Cal. Rptr. 1, 431 P.2d 625.)
In IN RE THE MARRIAGE OF AMY M. BAKER, f/k/a AMY M. JEWETT, and JAMON D. JEWETT, court discussed the issue of retroactivity of child support:
- At the hearing, the Court was of the view that the parties agreed that any retroactivity would be retroactive only to December 21, 2004, which is the date the motion to modify child support was filed. This Court agrees, and the date of December 21, 2004, will be the date of any retroactivity of child support payments.
In In re MARRIAGE OF STACY STREUR, and JOHN STREUR, JR., Illinois appellate court discussed that the retroactive order passed by trial court is reviewed under an abuse of discretion standard:
- A trial court s decision regarding retroactivity of child support is usually reviewed under an abuse of discretion standard. In re Marriage of Eberhardt, 387 Ill. App. 3d 226, 233, 900 N.E.2d 319, 326 Ill. Dec. 683 (2008). However, when the issue presented is one of law, and the facts and the credibility of witnesses are not an issue, our review is de novo. In re Marriage of Abrell, 236 Ill. 2d 249, 255, 923 N.E.2d 791, 337 Ill. Dec. 940 (2010). Here, although the issue involves the retroactivity of child support, the trial court s decision was predicated on its finding that it had no authority to make the modification of child support retroactive prior to May 2007. This is a question of law, and therefore, we apply a de novo standard of review.
In Davis v. Davis (1968) 68 Cal.2d 290 [66 Cal. Rptr. 14, 437 P.2d 502] court discussed as follows:
- In that case the parties were married, obtained a dissolution judgment providing for child support, remarried, and then dissolved the second marriage. The court held the remarriage extinguished the child support order entered in the first divorce action. The court held the child s mother could not collect support payments for the 36-month period between the separation that followed the remarriage and a second child support ordered entered in the second divorce action. Father argued this case was exactly on point. Mother disagreed and maintained paternity orders should be treated differently than divorce decrees.
- The court decided:
- At the end of the hearing, the trial court entered a temporary child support order that Father pay Mother $42 per month. It reserved the issue of retroactivity of the child support obligation. The court ordered Father to pay $250 per month on the arrears accrued in the Paternity case (but did not calculate the total sum owed). The parties were ordered to provide new income and expense declarations as well as paycheck stubs.
In CHRISTIE ALEXIS BREN, a Minor, etc., et al., v. DONALD L. BREN, court discussed:
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- "Family Code section 4009 (section 4009) governs the effective date for child support orders obtained in family law actions . . . ." (Italics added; accord, County of Riverside v. Burt (2000) 78 Cal.App.4th 28, 38 [Fam. Code, § 4009 "does not limit retroactivity to child support orders brought pursuant to former [Welf. & Inst. Code, § ] 11350 to the date of filing the notice of motion or order to show cause"].)
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- No authority stands for the proposition that Family Code section 4009 precludes the recovery of fraud damages where the allegation is that a parent falsely promised to pay a certain level of support. (Cf. Elisa B. v. Superior Court (2004) 118 Cal.App.4th 966, [discussing that the doctrine of promissory estoppel or equitable estoppel could create a duty of support on a noncustodial, same-sex partner, though holding that the facts as presented did not support application of either doctrine].)
- Neither of the cases relied on by Bren for his assertion that Family Code section 4009 should apply to this action involved allegations of fraud against the noncustodial parent. In In re Marriage of Koppelman (1984) 159 Cal. App. 3d 627, 205 Cal. Rptr. 629, disapproved on another point in In re Marriage of Fabian (1986) 41 Cal.3d 440, 451, 224 Cal. Rptr. 333, the appellate court held it was improper for the trial court to value a residence awarded to the wife as of the date the parties separated in order to reimburse the wife for [*31] the husband s failure to pay child
- support during the separation period. The court stated: "It is well established that child support orders can be made only prospectively and not retroactively. [Citations.] . . . Wife asserted that according to applicable court guidelines, husband should have paid far more child support than he did. This may very well be true. However, the trial court cannot retroactively order that he do so. Wife had the right to establish the amount of husband s obligation by requesting child support pending trial after the couple separated. She did not do so. It would be a denial of due process of law to deprive husband of his share of the appreciation of an asset to satisfy an alleged moral obligation which he had no opportunity to dispute." (In re Marriage of Koppelman, at p. 633, fn. omitted.) Similarly, the court in In re Marriage of Goosmann (1994) 26 Cal.App.4th 838, held that the wife-the custodial parent-was not entitled to an award of support predating her order to show cause for child support. There, the parties resolved the issues of child custody and visitation in 1990, but took all remaining issues off calendar, including child [*32] support, until the wife filed her order to show cause in 1992. The court explained that during those two years, "it appears that while [the husband] was on notice that [the wife] wanted child support, he had no incentive to force the issue to judgment, because then he would have had to start paying support sooner. Furthermore, [the wife s] inaction may have lulled [the husband] into believing she was abandoning her request for child support. [The wife], on the other hand, would have been motivated to force the issue to judgment if she had truly been in need of child support from [the husband]." (Id. at pp. 843-844.)
- Thus, in both Koppelman and Goosmann, the court concluded that the custodial parent s inaction in not seeking support sooner could not serve as a justification for an award of retroactive support. Neither of those family law actions involved an allegation that the custodial parent did not seek an award of support on the basis of false promises by the noncustodial parent. In other words, neither case addressed the situation here, where the custodial parent s inaction is alleged to be the result of promissory fraud by the noncustodial [*33] parent. We do not read either Koppelman orGoosmann as barring recovery of the fraud damages sought in this civil action.
In COUNTY OF RIVERSIDE, v. MICHAEL S. BURT, court discussed the issue of retroactivity of child support:
- The judgment was delayed for two years. Finally, the parties agreed to proceed to judgment. On August 27, 1998, the trial court ordered a bifurcated judgment naming Mr. Burt the father of Jeremy M. and ordered child support in the amount of $ 400 per month commencing August 5, 1998. The trial court reserved jurisdiction on the issue of back or accrued child support and continued the case to September 15, 1998. County requested back child support beginning on March 1, 1993, while Mr. Burt requested that it commence on February 1, 1996.
- Accordingly, we agree with County s interpretation of the Perry decision and hold that Perry does not limit retroactivity to child support orders brought pursuant to former section 11350 to the date of filing of the notice of motion or order to show cause. Instead, when a child support order is initiated pursuant to former section 11350, the noncustodial parent is liable for support commencing from the payment of AFDC benefits, subject only to the three-year statute of limitations and his or her reasonable ability to pay.
Further Section 3653 of Cal Fam. Code deals with the retroactivity of modification & termination it states:
- (a) An order modifying or terminating a support order may be made retroactive to the date of the filing of the notice of motion or order to show cause to modify or terminate, or to any subsequent date, except as provided in subdivision (b) or by federal law (42 U.S.C. Sec. 666(a)(9)).
- (9) Procedures which require that any payment or installment of support under any child support order, whether ordered through the State judicial system or through the expedited processes required by paragraph (2), is (on and after the date it is due)--
- (A) a judgment by operation of law, with the full force, effect, and attributes of a judgment of the State, including the ability to be enforced,
(B) entitled as a judgment to full faith and credit in such State and in any other State, and
(C) not subject to retroactive modification by such State or by any other State; except that such procedures may permit modification with respect to any period during which there is pending a petition for modification, but only from the date that notice of such petition has been given, either directly or through the appropriate agent, to the obligee or (where the obligee is the petitioner) to the obligor.
Per the comment added on the prior research following are the additional cases found which are similar to the query assigned, where first divorce proceeding was dismissed. Spouse filed second divorce proceeding, seeking child or spousal support retroactive to date of first divorce.
The dissolution legal proceedings have built-in protections for the best interests of the child. As discussed in In re the Marriage of MARK O. WILSON and TAMARA S. BODINE. MARK O. WILSON, v. TAMARA S. BODINE.
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- Child, the court may order either or both parents to pay ‘any amount necessary for the support of the child … .’ ”].) The dissolution legal proceedings have built-in protections for the best interests of the child. (Wittgrove, supra, 120 Cal.App.4th at p. 1326 [in implementing statewide uniform guidelines for child support under section 4053, the court s “main concern is the child s best interests”].) Thus, the child will not be harmed by the fact that an earlier child support order was terminated upon the marriage or remarriage of the parents.
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Phelps commenced dissolution proceedings in Del Norte County. She filed an order to show cause concerning child and spousal support and other matters on June 6, 2005, with a June 10 hearing date. Thereafter the parties stipulated to continue the evidentiary hearing and that any orders would be retroactive to June 10, 2005, with any payments made by Saffian to Phelps credited against such order.
A hearing took place on the stipulated date of continuance and the matter was submitted pending receipt of closing briefs. Both parties post hearing briefs referenced their understanding that support orders would be retroactive to the date of the order to show cause for support. However, prior to entry of decision and order, venue was changed to Humboldt County, per stipulation and order filed April 4, 2006. At that time the clerk was also directed to transfer the file to the Humboldt County Family Law Clerk.
In July 2006 Phelps filed a motion for child and spousal support, "pursuant to her motion previously filed in 2005." Phelps requested that support be retroactive to June 2005. She noted that Saffian s income was "approximately 16 times" that of her own. Saffian is a medical doctor employed as an anesthesiologist; Phelps works part-time as a physician s assistant.
The Court Decided:
- We reverse the orders of November 15, 2006, and December 29, 2006, to the extent they deny child and spousal support retroactive to June 10, 2005. The matter is remanded to determine the amount of offset for support payments made to or on behalf of Phelps and their daughter during the period in question. Saffian to pay costs on appeal.
Attached, copy of the referred Case:
In The Interest Of J.W., A Child, 97 S.W.3d 818; 2003 Tex. App. LEXIS 776 court denied the retroactivity of child support from the date of proceeding filled.
J.W. 2 was born during the marriage of J.W. s mother, Theodora Gilleylen, and Andrew L. Boone. In 1991, Theodora filed for divorce from Boone. In her petition, she alleged she and Boone were the parents of J.W. Boone did not answer and the divorce was granted by default on October 4, 1991. The divorce decree found that Theodora and Boone were the parents of J.W., appointed Theodora sole managing conservator of J.W., and ordered Boone to pay child support.
On October 16, 1996, Theodora filed a petition for termination of the parent-child relationship between J.W. and Boone, in which she alleged Boone was the biological father of J.W. The alleged grounds for termination were abandonment and failure to pay child support.
A decree terminating Boone s parental rights was signed on December 2, 1998, again by default. In the decree, the court found that Boone had abandoned J.W., that Boone had failed to pay child support, and that Boone was not the biological father of J.W. based on DNA paternity testing submitted to the court.
Theodora further filled different proceedings.
The court decided:
- In his second cross-issue, J.W. says that he requested at trial a child support award retroactive to January 1, 1999, and argues the trial court abused its discretion by awarding retroactive child support only to January 1, 2000. We have reviewed the record presented to us as to the order of the trial court establishing Williams s paternity of J.W. and ordering child support. However, there is no record of the evidence presented as to the child support portion of this order. Thus, J.W. has presented nothing for us to review on his cross-appeal regarding his claim for additional retroactive child support. See TEX. R. APP. P. 33.1; Am. Paging of Tex., Inc. v. El Paso Paging, Inc., 9 S.W.3d 237, 240 (Tex. App.-El Paso 1999, pet. denied); In re Marriage of Spiegel, 6 S.W.3d 643, 646 (Tex. App.-Amarillo 1999, no pet.). Based on the record before us, the trial court did not abuse its discretion in awarding retroactive child support to January 1, 2000 rather than January 1, 1999. See In re Guthrie, 45 S.W.3d 719, 727 (Tex. App.-Dallas 2001, pet. denied). We overrule J.W. s cross-issue number two.
Attached, copy of referred case:
In Shaunn Caillier Mccorvey v. Derriel Carlton Mccorvey, 05-889 (La. App. 3 Cir. 02/01/06); 922 So. 2d 694; 2006 La. App. LEXIS 150, court again discussed the matter of retroactivity of child support. Reversed opinion of the trial court.
* * *
After calculating McCorvey s monthly child support obligation, the trial court ruled that the obligation was retroactive to the date of judicial demand, which was June 24, 2002 when Harden filed for divorce and child support. The trial court then calculated an arrearage based upon the monthly obligation of $ 1,544.87 for themonths from June 24, 2002 through December 24, 2004, gave McCorvey credit for amounts paid, and ordered him to pay $ 27,027.97 in delinquent child support.
McCorvey argues that there is no delinquency whatsoever. He asserts that because he had been paying an interim child support amount of $ 673.00 per [Pg 19] month, pursuant to Judge Genovese s order of November 8, 2002, the current award by Judge McGee is a final award and is effective, not retroactively, but only as of the date Judge McGee signed the January 2005 judgment. McCorvey cites La.R.S. 9:315.21 B(1) as support for his argument against retroactivity.
* * *
We reverse the portion of the award regarding retroactivity of the payments resulting in the arrearage of $ 27,027.97.
Attached, copy of referred case:
In the present case the initial pleading was filled on 2007 by Husband. Afterwards wife filed a new proceeding for legal separation in July 26, 2010, not realizing that the parties were already divorced pursuant to the first proceeding. The issues of child and spousal support were still contested. So, the main issue to research in the query was the retroactivity of child support where two proceedings are filled. As per the abovementioned statutes and case law it is clear that a court may pass an order which is retroactive to the date of filing the petition, complaint, or other initial pleading.
In the last part of our memo we have attached some of the cases which will help you to add some more point to our memo drafted.
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