Keith G. v. Suzanne H.

• Decision Date: 10 March 1998
• Docket Number: No. B110278,B110278
• Citation: 72 Cal.Rptr.2d 525,62 Cal.App.4th 853,61 Cal.App.4th 1440
• Parties: , 62 Cal.App.4th 853, 98 Cal. Daily Op. Serv. 1772, 98 Daily Journal D.A.R. 2421, 98 Daily Journal D.A.R. 3587 KEITH G., Plaintiff and Appellant, v. SUZANNE H., Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

72 Cal.Rptr.2d 525

61 Cal.App.4th 1440

62 Cal.App.4th 853

98 Cal. Daily Op. Serv. 1772

98 Daily Journal D.A.R. 2421

98 Daily Journal D.A.R. 3587

KEITH G., Plaintiff and Appellant, v SUZANNE H., Defendant and Respondent

No. B110278

Court of Appeal, Second District, Division 6, California

March 10, 1998

Supplemental Opinion on Denial of Rehearing April 8, 1998

Review Denied June 24, 1998^*

Daniel E. Lungren, Attorney General; Roderick E. Walston, Chief Assistant Attorney General; Carol Ann White, Statewide Child Support Coordinator, and Mary A. Roth, Deputy Attorney General, for Plaintiff and Appellant. John Brown of Brown & Martinez, Oxnard, for Defendant and Respondent.

YEGAN, Associate Justice.

What is good for the goose is good for the gander. Here what was bad for the goose is now bad for the gander. A final 1986 California judgment requires Missouri resident Keith G. (father) to pay $253 per month to Suzanne H. (mother) for the support of their minor son B. Father ignored this obligation for approximately eight years and owes mother approximately $25,000 in child support. In 1994, B. moved to Missouri to live with father. Father obtained a Missouri court order requiring mother to pay $277 per month in child support. He sought civil enforcement of the order in California under the Uniform Reciprocal Enforcement of Support Act (URESA). (Fam.Code, former § 4800, et seq. now the Uniform Interstate Family Support Act, Fam.Code, § 4900 et seq.) ¹Mother argued she was entitled to a setoff of approximately $25,000 of arrearages owed pursuant to the 1986 California judgment. The trial court agreed.

The Attorney General, representing father, contends on appeal that the setoff is an impermissible modification of the Missouri order that violates both URESA and the Full Faith and Credit for Child Support Orders Act (FFCCSOA). (28 U.S.C.A., § 1738B.) As we shall explain, the trial court's order enforcing a judgment for child support but granting a setoff is not only rooted in common sense and fairness, it is also consistent with constitutional, statutory, and decisional law. We affirm.

Facts

Father and mother married in 1981. B. was born in 1982. The parties separated in November 1985. Mother and B. moved from Missouri to California where, in December 1985, mother filed a petition to dissolve the marriage. Father's motion to quash service of process for lack of personal jurisdiction was denied and he did not participate further in the action. On October 31, 1986, mother obtained a California judgment dissolving the marriage, awarding her sole custody of B. and requiring father to pay $253 per month for B.'s support.

Meanwhile, father filed a petition for dissolution in Missouri in January of 1986. He obtained a judgment in September 1986 that awarded custody of B. to him. The judgment made no provision for B.'s support.

Between November 1985 and the summer of 1991, mother had continuous physical custody of B. and received virtually no voluntary child support directly from father. She was able to obtain $8,600 in wage garnishments. In 1991, B. visited his paternal grandparents in Missouri and was not returned to California on schedule. Mother forced B.'s return by posting a $5,000 bond and obtaining a writ of habeas corpus from a Missouri court.

In connection with the habeas corpus proceeding, and a consolidated action for payment of child support, the Missouri Court of Appeals ruled that the 1986 California judgment was unenforceable in Missouri on the theory that California lacked jurisdiction over B. when the petition for dissolution was filed. It returned B. to mother's “temporary” custody but refused to order father to pay the arrearages due under the California judgment. We need not opine on the correctness of this opinion.

In 1992, father and mother agreed that B. would move to Missouri to live with father. By this time, father owed $24,328 in child support pursuant to the California judgment. In early 1994, father obtained an order from the Missouri court requiring mother to pay monthly child support of $277. Mother did not pay child support and did not seek a modification of the Missouri order. B. is not receiving public assistance for his support and the dispute only concerns father and mother.²

Father sought civil enforcement of the Missouri order in California under URESA. (Former § 4849.) Ventura County registered the order in July 1996 and sought a wage assignment against mother for ongoing support and arrearages. (Former § 4851.) Mother argued she was entitled to a setoff for arrearages under the 1986 California judgment. The trial court agreed, finding that the equities weighed in favor of mother and that a setoff for arrearages under the California judgment would not modify the Missouri order. The Attorney General, representing father, appeals.

Setoff for Accrued Child Support

Under URESA, a foreign support order that is registered in California, “shall be treated in the same manner as a support order issued by a court of this state. It has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a support order of this state and may be enforced and satisfied in like manner.” (Former § 4853, subd. (a).) In an action to enforce a registered foreign support order, “there shall be no ... cross-complaints, and the claims or defenses shall be limited strictly to the identity of the obligor, the validity of the underlying foreign support order, or the accuracy of the obligee's statement of the amount of support remaining unpaid unless the amount has been previously established by a judgment or order.” (Former § 4853, subd. (b).) Here, the amount of unpaid child support under the Missouri order had not been judicially established before the trial court entered the order currently on appeal.

In URESA actions, as in all other proceedings to enforce child support orders, the trial court may not modify or terminate the support order “as to an amount that accrued before the date of the filing of the notice of motion ... to modify or terminate.” (§ 3651, subd. (c).)

Father contends that the setoff is an impermissible modification of support arrearages and that the trial court's order violates section 4853, subdivision (b) because a setoff is analogous to a cross-complaint. Mother denies that any modification has occurred, and contends that the setoff permitted here is not analogous to a cross-complaint because it is a liquidated debt and father's liability has been established. We conclude that mother is correct.

When an out-of-state judgment or order for child support is registered in California, it becomes a California judgment for the arrearages and is subject to the same defenses as any other judgment. (Former § 4853; In re Marriage of Chester (1995) 37 Cal.App.4th 1624, 1629–1630, 44 Cal.Rptr.2d 717.) In an action to enforce such a judgment, the trial court lacks jurisdiction to reduce or modify support arrearages. ( In re Marriage of Perez (1995) 35 Cal.App.4th 77, 80, 41 Cal.Rptr.2d 377.)

However, the trial court does have discretion to determine the manner in which the judgment will be enforced. ( In re Marriage of Trainotti (1989) 212 Cal.App.3d 1072, 1075–1076, 261 Cal.Rptr. 36; Jackson v. Jackson (1975) 51 Cal.App.3d 363, 366–367, 124 Cal.Rptr. 101.) Accordingly, the trial court may give credit for past overpayment (In re Marriage of Peet (1978) 84 Cal.App.3d 974, 980–981, 149 Cal.Rptr. 108), “permit only partial enforcement or ... quash, in toto, a writ of execution directed against a parent in arrearage who, during the period in question, has had the sole physical custody of the child[,]” ( In re Marriage of Trainotti, supra, 212 Cal.App.3d at p. 1075, 261 Cal.Rptr. 36), or take into consideration “whether the debtor had satisfied or otherwise discharged the obligation imposed by the original order. [Citations.]” ( Ibid.) In addition, an obligor is entitled to credit for amounts paid under a support order from another state. (Former § 4840.)

The setoff requested by mother stands on the same footing as a credit for payments or overpayments under a foreign support. As the court noted in Trainotti: “The instant case is little different from any other instance in which a trial court, in determining the amount of a judgment is required to credit the judgment debtor with any setoff to which he is entitled....” ( In re Marriage of Trainotti, supra, 212 Cal.App.3d at p. 1075, 261 Cal.Rptr. 36.)

A setoff “... [is] founded on the equitable principle that ‘either party to a transaction involving mutual debts and credits can strike a balance, holding himself owing or entitled to the net difference....’ [Citation.]” (Granberry v. Islay Investments (1995), 9 Cal.4th 738, 744, 38 Cal.Rptr.2d 650, 889 P.2d 970.) Setoffs are routinely allowed in actions to enforce a money judgment. ( Brienza v. Tepper (1995) 35 Cal.App.4th 1839, 1847, 42 Cal.Rptr.2d 690; Salaman v. Bolt (1977) 74 Cal.App.3d 907, 918, 141 Cal.Rptr. 841; Margott v. Gem Properties, Inc. (1973) 34 Cal.App.3d 849, 854, 111 Cal.Rptr. 1.)Indeed, “The offset of judgment against judgment is a matter of right absent the existence of facts establishing competing equities or an equitable defense precluding the offset.” ( Brienza v. Tepper, supra, 35 Cal.App.4th at p. 1848, 42 Cal.Rptr.2d 690.)

The Family Code does not expressly prohibit a trial court from allowing a setoff for obligations under conflicting support orders. Nor has any California published opinion considered whether such a setoff should be allowed.

Williams v. Williams (1970) 8 Cal.App.3d 636, 87 Cal.Rptr. 754, rejected a noncustodial parent's request to set off unpaid child support against expenses he incurred for the maintenance of community property, one-half of which should have been paid by the custodial parent but were not. ( Id. at pp. 638–639, 87 Cal.Rptr. 754.) The Williams court reasoned that child support “is not an ...