Marriage of Comer, In re

• Court: California Supreme Court
• Writing for the Court: GEORGE; MOSK; BAXTER; BROWN
• Citation: Marriage of Comer, In re, 59 Cal.Rptr.2d 155, 14 Cal.4th 504, 927 P.2d 265 (Cal. 1996)
• Decision Date: 16 December 1996
• Docket Number: No. S043162,S043162
• Parties: , 927 P.2d 265, 65 USLW 2447, 96 Cal. Daily Op. Serv. 9048, 96 Daily Journal D.A.R. 15,023 In re Marriage of Donna and Gerald COMER. Donna Jean COMER, Appellant, v. Gerald Lee COMER, Respondent.

Page 155

59 Cal.Rptr.2d 155

14 Cal.4th 504, 927 P.2d 265, 65 USLW 2447,

96 Cal. Daily Op. Serv. 9048,

96 Daily Journal D.A.R. 15,023

In re Marriage of Donna and Gerald COMER Donna Jean COMER, Appellant, v. Gerald Lee COMER, Respondent.

No. S043162.

Supreme Court of California.

Dec. 16, 1996.

Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Carol Ann White and Mary A. Roth, Deputy Attorneys General, for Appellant.

Laurie Michelena Erickson and Sue Ellen Castrellon, Costa Mesa, for Respondent.

GEORGE, Chief Justice.

In In re Marriage of Damico (1994) 7 Cal.4th 673, 676, 29 Cal.Rptr.2d 787, 872 P.2d 126 (Damico), we held that a custodial parent's concealment of his or her own whereabouts and that of the parent's child until the child reached the age of majority may estop that parent from seeking payment of child support arrearages that accumulated during the period of concealment. We expressed no opinion in Damico as to whether a similar rule of estoppel would apply "when the concealment ends while the child is still a minor and might yet benefit from payment of the arrearages." (Id. at p. 685, 29 Cal.Rptr.2d 787, 872 P.2d 126.) Also, because Damico did not involve public assistance payments or the assignment of child support rights to a governmental entity, we expressed no opinion as to whether concealment by the custodial parent would estop a governmental entity, as assignee of the custodial parent's right to receive child support payments, from obtaining reimbursement for public assistance payments made to the custodial parent. (Ibid.)

In the present case, which involves concealment by a custodial parent that ended while her children still were minors, as well as the payment of public assistance in the form of Aid to Families with Dependent Children (AFDC), the Court of Appeal held that such concealment estopped the mother from collecting child support arrearages from the father, and that Gila County, Arizona, as assignee of the mother's rights, similarly was estopped from obtaining reimbursement from the father for AFDC payments made by the county to her.

This case thus presents the issues, noted above, that we explicitly declined to reach in Damico. As we shall explain, we conclude that a custodial parent's concealment of both parent and child--a concealment that terminates when the child still is a minor--does not constitute a defense to an action brought on behalf of the child against the noncustodial parent for child support arrearages. We further conclude that where the custodial parent has obtained public assistance payments for the child, and has assigned the right to child support arrearages to the public entity providing such assistance, the conduct of the custodial parent in concealing the child from the other parent does not estop the public entity from seeking child support arrearages--or reimbursement for public assistance payments--from the noncustodial parent.

Accordingly, we reverse the judgment of the Court of Appeal and order the case remanded for the purpose of determining the amount of child support arrearages due and reimbursement owed for AFDC payments made.

I.

Donna Jean Comer (mother) and Gerald Lee Comer (father) were married in 1980. Later that year, mother gave birth to the couple's first child, a son, and a second son was born in 1983. The family lived in the State of Florida until approximately 1985, when financial difficulties caused them to consider relocating to the State of Arizona (where mother's family resided). Mother and the children moved to Arizona while father remained in Florida to complete some business. He planned to join his family in Arizona but instead was served with notice that mother had obtained the dissolution of their marriage by default judgment in March 1985 in Gila County, Arizona. ¹ The default judgment awarded custody of the children to mother, subject to "reasonable visitation" by father, which the decree of dissolution of marriage defined as "[a]ny time [father] can get out here [to Arizona] or can afford to bring them out there. No more than 2 weeks at any one time." The judgment also ordered father to pay monthly child support of $350 for each child, for a total of $700 per month. Mother did not provide father with her new address, and instructed her family not to disclose her whereabouts to him.

Although father was served with copies of the orders granting dissolution and child support, he failed to make any monthly child support payments during the period between the dissolution of his marriage in March 1985, and September 1992, when he paid $100. In October 1992, he paid $300. At some point during this seven-and-one-half-year period, mother applied for, and began receiving, AFDC payments. As a condition of providing this public assistance to mother, Gila County, Arizona, pursuant to federal statutory mandate, required mother to assign to the county her rights to all current and past due support. (See 42 U.S.C. § 602(a)(26)(A).)

Father made no payment in November 1992. Later that month, mother commenced these proceedings in Gila County, seeking current child support and arrearages. Because father had moved to Orange County, California, Gila County (acting on mother's behalf) transmitted its petition--seeking enforcement of the existing child support order against father, collection of $29,300 in accrued child support arrearages, and recoupment of $35,096 in AFDC benefits--to the Orange County Superior Court, pursuant to the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), now known as the Uniform Reciprocal Enforcement of Support Act (URESA). (See Fam.Code, § 4800, et seq.; prior to 1994, these provisions were found at Code Civ.Proc., former § 1650, et seq.) ² The State of California, acting as the "'[r]esponding state"' (Fam.Code, § 4802, subd. (i)), and represented by the Orange County District Attorney's Office Family Support Division (Fam.Code, § 4831), filed the petition pursuant to Welfare and Institutions Code, sections 11350, 11350.1, and 11475.1, to obtain the relief requested. ³

Father filed an answer that denied all allegations set forth in the complaint and raised numerous affirmative defenses, including mother's "deliberate[ ] conceal[ment of] her whereabouts and the whereabouts of the minor children," fraud, estoppel, waiver, laches, and the statute of limitations. Father also submitted a declaration that set forth the details of his financial difficulties and his unpleasant relationship with mother.

The case was heard in August 1993. At the hearing, father elaborated upon the topics addressed in his declaration. He testified that, at the time of the marital dissolution, he did not submit any information to the court regarding his income, did not attend the dissolution proceedings, and had no idea upon what basis the court had ordered monthly child support in the amount of $700.

Father further testified that, during the initial period of separation in 1985, he communicated by telephone with his children when they visited the Arizona residence of their maternal grandparents. Although he was unaware of the precise location of mother's residence from 1985 to 1992, he was in telephone contact with her. Whether the estranged couple discussed father's child support obligations during these conversations is not disclosed by the record. In 1986 or 1987 father moved from Florida to California, stopping in Arizona to visit the children but, according to father, mother prevented the reunion. Father remained in touch with mother's parents and knew that the children frequently stayed with them. He knew that mother's parents and sisters lived in Phoenix, Arizona.

In 1988, father arranged through mother's parents to travel from California to Arizona in order to spend a weekend with the children at the grandparents' residence. Mother and the children, however, failed to appear at the residence at any time during the scheduled weekend. Father believed that mother had warned her parents that if they ever informed father as to the whereabouts of her or her children, she never again would permit her parents to see their grandchildren.

Father testified that he subsequently learned mother had remarried, but that he did not know her new married name. He did not contact law enforcement officials in an effort to locate her, because he did not believe they would help, and he stated he could not afford to retain the services of a private investigator. He did not consider using the Arizona court system to enforce his right of visitation with his children. Although he occasionally communicated with mother's parents, he did not again speak directly with his children until September 1992, when his older son telephoned him. At that point, father learned of mother's new name and the address where she and their children resided.

Father also described his persistent financial problems that stemmed from his difficulty in obtaining work as a flooring installer. He testified that, after remarrying, he and his new wife reported a gross income for the year 1992 in the amount of $53,628, of which approximately $20,000 was attributable to his wages. He added that, as of September 1992, he no longer possessed a contractor's license, a circumstance that compelled him to perform less lucrative work as a handyman. He estimated that his gross monthly wages as of August 1993 were approximately $1,500, from which, by virtue of his self-employment status, he was responsible for business expenses of approximately $500.

Upon hearing father's testimony, the court ordered him to pay a total of $371 in monthly child support for both children. With regard to the 11-month period that extended from mid-September 1992 to August 1993, when father was in contact with mother and their children, the court found that father owed support arrearages in the amount of $7,700, against which the court...