Contra Costa County ex rel. Tuazon v. Caro
| Citation | 802 P.2d 1212,8 Haw.App. 341 |
| Decision Date | 26 July 1990 |
| Docket Number | No. 13903,13903 |
| Parties | CONTRA COSTA COUNTY, ex rel. Henrissa S. TUAZON, Plaintiff-Appellee, v. Policarpio P. CARO, Jr., Defendant-Appellant. |
| Court | Hawaii Court of Appeals |
Syllabus by the Court
1. Under Hawaii Revised Statutes Chapter 576 (Supp.1989), which is Hawaii's Uniform Reciprocal Enforcement of Support Act (HURESA), the enforcement of parent A's duty to pay child support is unaffected by parent B's interference with parent A's court-ordered rights of child custody or visitation.
2. In a HURESA action by a decree creditor to collect court-ordered child support arrearages, the decree debtor may assert the equity equivalent of any relevant defense that a judgment debtor in a similar situation would be allowed to assert except that HURESA bars the decree debtor from asserting the defense that the decree creditor interfered with his court-ordered rights of child custody or visitation.
3. A court-ordered child support payment becomes an enforceable decree when the payment becomes due. A due but unpaid court-ordered child support payment (decree arrearage) is enforceable in family court. The family court may authorize payment of a decree arrearage on a deferred payment basis.
Where the family court authorizes payment of a decree arrearage on a deferred payment basis and payment is not made, the deferred payment arrearage then becomes a decree-judgment debt enforceable in both family court and civil court. Where the family court declines to authorize payment of a decree arrearage on a deferred payment basis, the decree arrearage then becomes a decree-judgment debt enforceable in both family court and civil court. The decree-judgment creditor may take a decree-judgment to civil court and have the civil court enforce it in the same manner as the civil court enforces judgments entered by civil courts. The family court's express decision to accord decree-judgment status to a child support decree arrearage is an implied decision not to authorize payment of the decree arrearage on a deferred payment basis.
Donald S. Nishimura, Honolulu, for defendant-appellant.
John R. Gibbs, Deputy Corp. Counsel (Rosemary McShane and Naomi S. Campbell, Deputies Corp. Counsel, on the briefs), for plaintiff-appellee.
Before BURNS, C.J., and HEEN and TANAKA, JJ.
Defendant Policarpio P. Caro (Father) appeals the family court's May 9, 1989 $11,808.00 Judgment (May 9, 1989 Decree-Judgment) in favor of plaintiff Contra Costa County, ex rel. Henrissa S. Tuazon (Plaintiff). We vacate the May 9, 1989 Decree-Judgment and remand for further proceedings consistent with this opinion.
The relevant facts, listed chronologically, are as follows:
February 3, 1963 Henrissa S. Tuazon (Mother) and Father are married.
September 3, 1963 First Son is born.
January 15, 1965 Second Son is born.
July 26, 1966 Third Son is born.
June 4, 1968 Fourth Son is born.
August 4, 1969 A Daughter is born.
January 26, 1973 A decree of divorce is entered in First Circuit Family Court FC-D No. 76699 that (1) awards Mother custody of the five minor children, subject to Father's rights of reasonable visitation; (2) orders Mother to keep Father informed of the residence address of the children; and (3) orders Father to pay Mother child support of $350.00 per month commencing February 1973.
April 16, 1975 According to Mother, on this date she provided the family court with her future residence address at 767 Humboldt Street, Richmond, California 94805. Mother states that Father "knew of this and he even send [sic] us a note[.]" In her April 18, 1988 complaint for support filed in California, Mother lists her residence as 767 Humboldt Street, Richmond, California.
July 17, 1975 Father marries Lucille.
May 6, 1975 Father and Lucille's first Daughter is born.
May 6, 1975 Mother files a post-divorce decree motion seeking, among other orders, a $100.00 per month increase in child support.
September 17, 1975 Family court approves and orders Mother's and Father's stipulation settling Mother's May 6, 1975 motion. It reduces Father's child support obligation to $175.00 per month, commencing April 1, 1975, payable in two installments of $87.50 on the 5th and 20th of each month through the chief clerk of the court. It schedules a November 12, 1975 hearing to review the child support issue. Both parties are represented by counsel.
November 12, 1975 The child support review hearing commences.
November 28, 1975 Family court enters an order continuing the child support review hearing.
June 1977 Father makes his last $175.00 per month child support payment through the chief clerk of the court.
June 1977 Mother, stepfather, and the five children relocate without informing Father of their new location. Father is unsuccessful in his efforts to locate them. 1
February 19, 1981 Father and Lucille's second Daughter is born.
Father's Day 1982 Second Son telephones Father.
June 21, 1982 Second Son's letter to Father reveals the children's residence address in Richmond, California.
December 12, 1984 California authorities place Daughter in a foster home.
June 29, 1985 Daughter and Second Son return to Hawaii to live with Father.
August 9, 1985 Daughter gives birth to Granddaughter.
March 1986 Daughter and Granddaughter move to California to live with an aunt.
April 18, 1988 Mother initiates a uniform reciprocal enforcement of support act (URESA) action in California to collect past-due child support from Father.
August 1, 1988 Mother's URESA action is filed in Hawaii.
September 18, 1988 Father is served in the URESA action.
March 20, 1989 Family court hears the URESA case.
May 9, 1989 Family court determines that the child support due is $35.00 per child per month; terminates child support for each child when the child reached age 18; holds that the Hawaii Revised Statutes § 657-5 (1985) ten-year statute of limitation was not tolled until Father was served on September 18, 1988; 2 credits Father with the $1,002.00 he paid for medical services to Daughter; determines that Father was not required to pay Mother child support for Daughter during the nine months Daughter lived with Father; enters the $11,808.00 May 9, 1989 Decree-Judgment in favor of Mother 3 and against Father; and expressly makes the judgment a civil judgment.
July 25, 1989 Family court enters its Findings of Fact, Conclusions of Law, Decree. It awards Mother judgment against Father in the sum of $11,800.00. It does not explain the $8.00 reduction.
Father contends that the family court's July 25, 1989 Conclusion of Law 1 is wrong. It states as follows: "The concealment of the subject children by the custodial parent from the other would not excuse the non-custodial parent from the duty of paying child support for the duration of the concealment."
We conclude that Conclusion of Law 1 is statutorily mandated. Hawaii Revised Statutes (HRS) Chapter 576 (Supp.1989), Hawaii's URESA (HURESA), states, in HRS § 576-39.3, that "[t]he 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." HRS § 576-1 defines "obligee" as "any person to whom a duty of support is owed or a person ... that has commenced a proceeding for enforcement of an alleged duty of support[.]"
In this case, Mother and the five children are all "obligees". Thus, as applied in this case, HRS § 576-39.3 states as follows: "The ... enforcement of [Father's] duty of support owed to [the five children] is unaffected by any interference by [Mother] with [Fathers] rights of ... visitation granted by [the Hawaii family court on January 26, 1973]." See Moffat v. Moffat, 27 Cal.3d 645, 165 Cal.Rptr. 877, 612 P.2d 967 (1980); Matter of Adoption of K.L.J.K., 224 Mont. 418, 730 P.2d 1135 (1986); Board of Social Services ex rel. Florida for Lohman v. Lohman, 229 N.J.Super. 485, 551 A.2d 1051 (1989).
Moffat, supra, is a URESA case where the custodial parent for the first time obtained a court order requiring the non-custodial parent to pay child support. Prior to and at the time of the order, the custodial parent refused to allow the non-custodial parent to visit the children. However, the custodial parent did not conceal herself and the children from the non-custodial parent.
Father contends that cases involving interference, not concealment, and future child support, not arrearages, are inapposite. He asks us to follow In re Marriage of McLucas, 210 Cal.App.3d 83, 258 Cal.Rptr. 133 (1989). McLucas holds that Moffat does not apply to non-URESA cases where (1) the custodial parent seeks to collect child support arrearages from the non-custodial parent for the period of time when the custodial parent concealed herself or himself and the child from non-custodial parent; (2) the welfare of the child is not involved; and (3) a public agency is not seeking reimbursement. Its rationale is that since the welfare of the child is not involved and the non-custodial parent could not find the custodial parent to enforce his or her visitation rights, the denial of visitation is a defense.
For four reasons, we decline to follow McLucas. First, since our case is a URESA case Moffat, not McLucas, is the controlling California case law on the subject. 4 Second, as previously noted, HURESA states, in HRS § 576-39.3, that "[t]he 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." To apply the McLucas rationale in HURESA cases, we would have to hold that the phrase "any interference" does not include "total concealment." We are not at liberty to disregard the plain meaning of the legislature's choice of words, especially when the words are the words of a national uniform act.
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