Jackson v. Jackson

• Decision Date: 16 September 1975
• Citation: 124 Cal.Rptr. 101,51 Cal.App.3d 363
• Court: California Court of Appeals
• Parties: Gail Patrick JACKSON, Plaintiff, Cross-Defendant, Respondent and Appellant, v. Thomas Cornwell JACKSON, Defendant, Cross-Complainant, Appellant and Respondent. Civ. 41594.

Page 101

124 Cal.Rptr. 101

51 Cal.App.3d 363

Gail Patrick JACKSON, Plaintiff, Cross-Defendant, Respondent and Appellant, v. Thomas Cornwell JACKSON, Defendant, Cross-Complainant, Appellant and Respondent.

Civ. 41594.

Court of Appeal, Second District, Division 2, California.

Sept. 16, 1975.

Hutchinson & Irwin, James A. Irwin, Gerald H. B. Kane, Los Angeles, for plaintiff and cross-defendant Gail Patrick Jackson.

Melvyn, Mason and Dern, Mason & Swerdlow, Beverly Hills, for defendant and cross-complainant Thomas Cornwell Jackson.

COMPTON, Associate Justice.

When Gail and Thomas Jackson were divorced in April of 1969, custody of their 16 year old daughter Jennifer was awarded to Gail. Thomas was ordered to pay $750.00 per month for her support.

On September 30, 1971, Thomas caused to be issued an order to show cause for the purpose of modifying the decree to eliminate the support payments. In December of 1971, Gail countered with two citations of contempt for Thomas' failure to make previously due payments. On March 13, 1972, the trial court discharged the contempt citations and ordered termination of the support payments as of September 30, 1971 on the grounds that '. . . Jennifer maintains a permanent residence in (Thomas) home.'

On June 5, 1972, Gail retaliated by obtaining, ex parte, the issuance of a writ of execution in the principal amount of $16,500.00 the aggregate of 22 months of allegedly unpaid support payments (in excess of $18,000.00 with interest and costs) and on June 30, 1972, levied on Thomas' bank account. Significantly, the date of the onset of Thomas' delinquency as alleged in the application for the writ of execution is December 1, 1969. Both parties agree that on November 14, 1969, Jennifer, with Gail's consent, commenced residence with Thomas, a residence which the trial court found to be permanent at least as of September 30, 1971.

Thomas moved for an order recalling and quashing the writ of execution and in the alternative for an order for reimbursement for money expended for the benefit of Jennifer.

The trial court, basing its ruling on various affidavits and documents in the file denied both motions declaring that the motion to recall and quash the writ of execution was '. . . an attempt to modify child support prior to the date of filing his Order to Show Cause to Modify Child Support dated September 30, 1971 and therefore contrary to Section 4700(a) Civil Code.' ¹

Thomas noticed an appeal from the order and Gail moved in the trial court for attorney fees and costs in connection with the appeal. That motion was denied and Gail has appealed from that order.

THOMAS' APPEAL

The trial court made no specific findings of fact but since the facts which we consider to be crucial to this appeal are uncontroverted, we will not imply findings in support of the order but instead determine the issue presented by applying certain principles of law to those undisputed facts. As we view it these facts were such as to permit the trial court, in the exercise of discretion and by the application of equitable considerations, to quash the writ of attachment thereby denying to Gail that method of enforcement of her judgment.

Since it is clear from the statement of the basis of its ruling that the trial court conceived that it had no such discretion and thus failed to exercise it and since that statement reflects that the result was arrived at because of erroneous reasoning, we remand the case for reconsideration in light of the principles which we here set out. (See People v. Robarge, 41 Cal.2d 628, 262 P.2d 14; Lippold v. Hart, 274 Cal.App.2d 24, 78 Cal.Rptr. 883; Ehrenreich v. Shelton, 213 Cal.App.2d 376, 28 Cal.Rptr. 855; Bailey v. Fosco Oil Co., 180 Cal.App.2d 289, 4 Cal.Rptr. 474; Estate of Rohde, 158 Cal.App.2d 19, 323 P.2d 490.)

While it is true that an order for child support may not be retroactively modified (Civ.Code, § 4700) and that accrued arrearages are treated like a judgment for money (Hunter v. Hunter, 170 Cal.App.2d 576, 339 P.2d 247; Bryant v. Bryant, 161 Cal.App.2d 579, 326 P.2d 898.) it must be remembered that such orders are an exercise of the court's equitable power and are designed to compel satisfaction of the child support obligation which exists apart from the marriage status. The obligation is to the child and not to the mother. (Estate of Goulart, 218 Cal.App.2d 260, 32 Cal.Rptr. 229; Williams v. Williams, 8 Cal.App.3d 636, 87 Cal.Rptr. 754.)

Civil Code section 208 provides that a parent is not bound to compensate the other parent for the voluntary support of his child, absent an agreement, and in Spivey v. Furtado, 242 Cal.App.2d 259, 51 Cal.Rptr. 362, the court denied a father credit for substituted payments but, without specifically deciding the issue, suggested that under certain circumstances and because of equitable considerations a father might, as against an order for child support, be credited for payments made directly to the child or for the child's benefit. In Spivey, after reviewing the law in other jurisdictions the court pointed out that where credit for substituted payment had been allowed there was an express or implied finding that the mother consented thereto, and it is there stated that it is within the discretion of the trial court to decide if such consent was present. In affirming the trial court's denial of credits the court stressed the fact that the father was affluent and the wife 'desperately poor.' That situation does not exist here. Both Thomas and Gail are financially situated.

It was early recognized in Parker v. Parker, 203 Cal. 787, 266 P. 283, that while a court may not retroactively modify accrued payments, it could deny enforcement of such a judgment on equitable grounds. (Also see Wilkins v. Wilkins, 95 Cal.App.2d 611, 213 P.2d 748.) Hence, contrary to the trial court's understanding, quashing of the writ of execution is separate and distinct from retroactive modification of the original order.

In Lohman v. Lohman, 29 Cal.2d 144, at page 150, 173 P.2d 657, at page 660, the California Supreme Court adopted the rule that 'Although issuance of execution upon a judgment requiring monthly payments may be denied upon equitable grounds, proof that the installments have accrued within five years establishes a prima facie right to execution and the burden is cast upon the judgment debtor to establish facts justifying an order denying the writ.'

In Wilkins, supra, at pages 610--611, 213 P.2d at page 751, it was stated: 'It therefore would appear that the trial court has, under the circumstances here related, the right to recall the execution and Allow the enforcement of the judgment, only to the extent of the husband's legal and equitable liability to pay.' (Emphasis added.)

Finally, in Messenger v. Messenger, 46 Cal.2d 619, 297 P.2d 988, it was held that because of an 1951 amendment to Civil Code section 139 ² 'the trial court now has discretion to determine in each case whether execution is an appropriate remedy for enforcing its order.' (P. 630, 297 P.2d p. 994.) (Also see Baum v. Baum, 172 Cal.App.2d 658, 342 P.2d 940; Slevats v. Feustal, 213 Cal.App.2d 113, 28...