Child Support / Laches

One of the axioms in family law is that if you owe child support it is an obligation that will follow you forever.

This is clearly the intent of the California legislature. Prior to 1992, child support orders were like other civil judgments in that there was a set time period in which they could be enforced and then, after the time period renewed. In a series of legislation in 1992 and 1993, the scheme for enforceability of all support orders were dramatically changed. Family Code Section 4502 eliminated the need to renew judgments awarding support (both child and spousal) and effectively made support orders enforceable in perpetuity. Subsequent to the aforementioned new legislation, the courts, in interpreting same, found that latches could still be a defense not only to a collection of arrears of spousal support but also child support (In re Dancy (2000) 82 Cal.App.4th 1142, 1147-1160).

However, this defense of laches to a support collection, other than for support owed to a governmental agency, was eliminated by legislation in January 2003 when Family Code Section 4502(c) was amended to state:

“In an action to enforce a judgment for child, family or spousal support, the defendant may raise and the court may consider the defense of latches only with respect to any portion of the judgment owed to the state.”  (Emphasis added).

Although appellate courts have stressed the equitable nature of collection of child support long after the parties’ children have reached majority, the legislature, by the amendment, clearly intended the equitable defense of laches to be eliminated, in most instances.

The recent case of In re Marriage of Garcia (2003) DJDAR  may well be one of the last reported cases to allow the defense of laches to a child support collection.

The parties in Garcia were divorced in 1988. There were three minor children from the marriage:  Manuel, born 1979; Nicole, born 1982 and Vincent, born 1983. The father was to pay a total of $372.99 per month for child support for all three children. In addition, he was to maintain health insurance for the children and the parties were to equally share any uncovered medical expenses. The minors continued to live with the mother until 1989 when they commenced living with the father. The minors continued to live with the father until 1994. Thereafter, the minors’ living arrangements appear to fluctuate between the parties and a brief period with relatives in Texas. It is undisputed that the father stopped paying child support in 1989 concurrent with the children coming to live with him. Father did not seek a modification of the child support order and maintains that in 1994 (when all three minors no longer lived with him) he had a conversation with mother wherein he indicates that mother told him that he no longer needed to pay child support.

Sometime thereafter, mother made contact with the Support Division of Ventura County District Attorney’s Office. That office first made contact with father on October 19, 2000 regarding payment on the 1988 child support order. At the time of the contact, the youngest child was 17 years old. The matter finally came to an evidentiary hearing on October 31, 2001, when all the children were past the age of majority.

The court determined that under the existing support order, taking into account the periods of time when the children were in father’s care, the total amount that father owed for child support (plus interest) was $24,998.00. However, the court further ruled that as a result of mother’s delay in seeking enforcement and the resulting prejudice to father, laches applied. As such, father owed no money for child support arrears.

Mother appealed. By the time the matter was heard in the Appellate Court, the legislature had amended  Family Code Section 4502 eliminating the equitable defense of laches in a child support collection matter, unless the amount was owed to a governmental agency.

The Appellate Court determined that the amended to Family Code Section 4502 was not intended to be retroactive. The Court found that the amendment to Family Code Section 4502 was a change in the law and not a mere clarification of existing law. As the Court stated on Page 9052:

“…Statutes which change the law do not apply retroactively unless legislature has clearly indicated otherwise.”

The Appellate Court cited authority that a clarification of existing law does not technically have retroactive effect because it clarifies what the true meaning of the statute always was.

As the Court in Garcia clearly stated on Page 9052:

“We conclude the addition of subdivision (c) to Family Code Section 4052 effected a change in the law, rather than simply clarification.”

As the Appellate Court discussed, the legislative history of the amendment supported the contention that it was an actual change in the law, as opposed to a clarification. There has been ample discussion in the legislative history of the fact that the equitable defense of laches was still available. Nowhere in the legislative history was a reference made that any of the cases using laches as a defense were wrongly decided. As the Court stated on Page 9052:

“This recognition of laches as an existing defense shows the legislature intended to effect a change in the law when it enacted Family Law Code Section 4502, subdivision (c).

As such, the Court determined that since the amendment was a change in the law and that there was no specific express intention by the legislature that the new law was to be retroactive, the law could not apply to cases heard before January 2003, like the Garcia case. In affirming the Trial Court, the Court found that the mother’s delay of waiting seven (7) years after the children had returned to her custody.  The Court stated on Page 9053:

“Laches was a valid defense when mother sought to enforce the child support order and its availability is not effected by the 2003 amendment to Section 4052 … While this delay was not as a great as in some cases applying laches, the prejudice to father was significant.”

The defense of laches has two prongs:  an unreasonable delay and prejudice caused by the delay. Interestingly, the decision does not indicate what that prejudice incurred by the father was. The decision does state, however, that father had spent a “considerable amount” on the children over the years (presumably even when they were not in his custody), and that in itself created a prejudice by him not putting money aside to pay past due child support. The Trial Court also gave father credit for the time that the children were in his custody. In essence, the Court recognized an equitable concept that father’s support obligation had been “discharged” by actually having the children. This concept has previously been recognized regarding child support when a party does in fact have the children and is still under an order for payment of support to what, in essence, is a non-custodial parent. (In re Marriage of Okum, (1987) 195 Cal.App.3d 176. It is interesting that the 2003 amendment to Family Code Section 4052 does not appear to preclude application of this other type of equitable defense to child support arrears.

What the Appellate Court did not address was that although the amendment to Family Code Section 4052 does not apply to cases heard prior to its enactment, does it apply to child support arrearages accrued prior to its enactment?  That remains a question for another day and possibly one of the few remaining aspects in which child support arrears may not be collectible.

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