In re Marriage of Gerkin

• Court: California Court of Appeals
• Writing for the Court: Fybel
• Citation: In re Marriage of Gerkin, 74 Cal.Rptr.3d 188, 161 Cal.App.4th 604 (Cal. App. 2008)
• Decision Date: 28 February 2008
• Docket Number: No. G038172.,G038172.
• Parties: In re MARRIAGE OF Louise E. and Charles Randall GERKIN. Louise E. Gerkin, Respondent, v. Charles Randall Gerkin, Respondent; County of Orange, Appellant.

74 Cal.Rptr.3d 188

161 Cal.App.4th 604

In re MARRIAGE OF Louise E. and Charles Randall GERKIN Louise E. Gerkin, Respondent, v. Charles Randall Gerkin, Respondent County of Orange, Appellant.

No. G038172.

Court of Appeal, Fourth District. Division 3.

February 28, 2008.

Edmund G. Brown, Jr., Attorney General, Douglas M. Press, Assistant Attorney General, Paul Reynaga and Mary Dahlberg, Deputy Attorneys General, for Appellant.

Louise Gerkin, in pro. per., for Respondent Louise E. Gerkin.

Charles Randall Gerkin, in pro. per.; R. Jeffrey Isles for Respondent Charles Randall Gerkin.

OPINION

FYBEL, J.

INTRODUCTION

The Orange County Department of Child Support Services (DCSS) appeals from an order of the Orange County Superior Court which found a child support provision in a California judgment of dissolution had been nullified by an order of the Sedgwick County District Court in Kansas. We reverse.

Under the provisions of the Revised Uniform Reciprocal Enforcement of Support Act (RURESA) (9C West's U. Laws Ann. (2001) RURESA, § 1 et seq.; former Code Civ. Proa, § 1650 et seq.), DCSS filed a petition in the Kansas court to obtafti a support order enforceable against Charles Randall Gerkin in the State of Kansas. The order issued by the Kansas court set a lower amount of support than had been provided for in Charles and Louise E. Gerkin's dissolution judgment entered in California.¹ Because the Kansas court's order did not specifically state it was modifying or nullifying the existing support provision in the California dissolution judgment, under RURESA, it could not set a lower amount of support than as provided in the earlier California judgment. (9C West's U. Laws Ann., supra, RURESA, § 31; former Code Civ. Proc., § 1689.) Although Charles apparently made payments pursuant to the Kansas court's support order, his support obligation in California continued, subject to offset for the amounts paid in Kansas.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

A judgment dissolving Louise and Charles's marriage was entered by the Orange County Superior Court in December 1988. Louise and Charles had three daughters, then ages ten, seven, and four. The judgment of dissolution established child support payments from Charles to Louise in the total amount of $484 per month. (Charles was ordered to pay $161 per month for each child; the support payments "shall continue until the child reaches the age of nineteen, or eighteen and is not a full-time high school student residing with a parent, or until the child marries, dies, is emancipated, or until further order of the court, whichever occurs first.") In late 1989, Charles moved to Wichita, Kansas.

In September 1990, DCSS sent to the State of Kansas a uniform support petition and general testimony, pursuant to RURESA, to enforce Charles's child support obligations, including accrued arrearages. In the uniform support petition, DCSS requested an order for "fair & reasonable" child support, medical coverage, plus arrearages in the amount of $3,227.50. On November 13, 1991, the District Court of Sedgwick County, Kansas, entered a support order in the total amount of $251 per month, and established arrearages at $1,811. The November order was later modified by the Kansas court to change the amount of the arrearages to $3,311.

The Kansas court trustee, which is Kansas's child support enforcement agency, reduced the amount of child support owed by Charles in July 1996 and again in July 2000, when Charles and Louise's two eldest children turned 18 years old.

In July 2004, Charles filed a motion in Kansas to determine arrearages and stay the issuance of an income withholding order, claiming he had overpaid child support by $7,430.49 DCSS's records at the time reflected arrearages in the amount of $33,908.49. On August 9, the Kansas district court ordered income withholding to cease. A hearing was conducted on January 3, 2005 on Charles's motion to determine arrearages. Louise never received notice of the hearing; neither Louise nor DCSS appeared. The Kansas court trustee and Charles's counsel advised the court they had agreed with each other that Kansas had overcollected $7,430.49. The Kansas court then entered an order against Louise and in favor of Charles in the amount of $7,430.49.

In May 2006, Charles filed an order to show cause in the Orange County Superior Court to determine arrears or overpayment and reimbursement. Charles demanded reimbursement of the $7,430.49 provided by the January 2005 Kansas court order, as well as reimbursement of any sums collected by DCSS since that order was entered.

Following a hearing, the trial court provided a detailed statement of decision. In relevant part, the statement of decision reads as follows:

"... Within page 3 of the URESA [Uniform Reciprocal Enforcement of Support Act] petition signed by petitioner, petitioner did not ask the Kansas Court to register and enforce the current (California) support order, a choice at hand. Instead, the petitioner specifically petitioned the Kansas court to set support according to its discretion and in a `fair and reasonable way' notwithstanding that California had already ordered respondent to pay a sum certain for child support. This record leads to one conclusion—that petitioner/DCSS asked the Kansas court to establish a new support order, in lieu of the California judgment. The Kansas court also ordered an `abatement' of the support amount up to one half, for periods of time the [noncustodial parent]/respondent had extended visitation with the children—a term the California judgment did not address. The latter order is, on its face, a new and different order. On this record, it is very difficult to characterize the Kansas order as a mere successive/cumulative order while considering the California extant. [¶] ... [¶]

"... This court concludes the Kansas support orders were not just second in time. Instead, petitioner engaged the Kansas court to establish a new child support order, or in other words, to in fact modify the California judgment (juxtapose to enforcement).... The California child support order within the California judgment was nullified when Kansas established a new support order at the request of petitioner and DCSS—arrears can not follow from a non-extant California order.

"Findings: The court makes the following findings:

"1. While the petitioner and the minor children always resided in California, nonetheless petitioner signed the URESA petition and thereby consented to Kansas jurisdiction to modify the California judgment regarding child support.

"2. The Kansas order dated November 13, 1991 nullified and superseded the California Judgment insofar as child support.

"3.. The petitioner was fully aware of the issues before the Kansas court and acted by and through DCSS who filed the URESA petition, notwithstanding she was not present during the Kansas hearings. The court finds no due process violation.

"4. After the Kansas court specifically modified the California judgment, that part of the California judgment pertaining to child support was no longer enforceable.

"5. Because Kansas modified the California judgment with regard to support, Kansas acquired continuing exclusive jurisdiction so that Kansas law applied prospectively as to the accrual of interest.

"6. The state of Kansas has already determined arrears and its order is controlling and entitled to full faith and credit.

"Order:

"The court orders DCSS to enforce the Kansas order, which is controlling."

DCSS timely appealed from the court's ruling.

DISCUSSION

I. STANDARD OF REVIEW

We review the trial court's interpretation of law de novo. (People ex rel Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432, 101 Cal.Rptr.2d 200, 11 P.3d 956; Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 823, 60 Cal.Rptr.3d 175.)

II. HISTORICAL BACKGROUND

In 1950, the National Conference of Commissioners on Uniform State Laws (the Conference) and the American Bar Association (ABA) approved the Uniform Reciprocal Enforcement of Support Act (URESA); URESA was amended in 1952 and 1958. (9C West's U. Laws Ann., supra, URESA, Historical Notes, p. 273.) The purpose of URESA was to address "the problem of interstate enforcement of duties of support," given "the increasing mobility of the American population." (Id., Prefatory Note (1950), at p. 273.)

As relevant to the present case, URESA provided a uniform system by which a support order entered in one state could be enforced in another when the parent paying support moved. "In the past, the greatest difficulty in enforcing support where the parties are in different states has been the expense of travel to a distant state to litigate the rights of the destitute obligee. Under this Act this expense can be reduced to filing fees plus a few postage stamps. In a nutshell, this two-state proceeding is as follows: It opens with an action ... which normally will be commenced in the state where the family has been deserted (the initiating state). A very simplified petition is filed.... The judge looks it over to decide whether the facts show the existence of a duty of support and if they do he sends the petition and a copy of this Act to a court of the responding state to which the husband² has fled or in which he has property. ... That court will take the steps necessary to obtain jurisdiction of the husband or his property, will hold a hearing ... and if the court finds that a duty of support exists, it may order the defendant to furnish support ... and will transmit a copy of its order to the court in the initiating state.... To enforce compliance with its orders the court may subject the defendant to such terms and conditions as it may deem proper, may require him to furnish bond or make periodic payments or, in case of refusal, may punish him for contempt.... It has the duty to transmit to the initiating court any payments it receives and upon request to furnish a certified...