Marriage of Damico, In re

• Decision Date: 28 April 1993
• Citation: 15 Cal.App.4th 263,19 Cal.Rptr.2d 88
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 15 Cal.App.4th 263, 20 Cal.App.4th 515 15 Cal.App.4th 263, 20 Cal.App.4th 515 In re the Marriage of Mary and Ronald DAMICO. Mary DAMICO, Respondent, v. Ronald DAMICO, Appellant. AO56426.

Page 88

19 Cal.Rptr.2d 88

Previously published at 15 Cal.App.4th 263, 20 Cal.App.4th 515

15 Cal.App.4th 263, 20 Cal.App.4th 515

In re the Marriage of Mary and Ronald DAMICO Mary DAMICO, Respondent, v. Ronald DAMICO, Appellant.

AO56426.

Court of Appeal, First District, Division 1, California.

April 28, 1993.

Review Granted Aug. 19, 1993.

Daniel E. Lungren, Atty. Gen., Gloria F. Dehart and Mary A. Roth, Deputy Attys. Gen., San Francisco, for respondent.

Law Offices of Richard P. Roggia, Richard P. Roggia, San Jose, for appellant.

NEWSOM, Acting Presiding Justice.

On January 15, 1991, respondent, through the Family Support Division of the Marin County District Attorney's Office, filed a Statement for Registration of Foreign Support Order which had been entered in San Francisco Superior Court and modified thereafter. The order which respondent sought to enforce was entered on June 23, 1980, and determined that appellant owed child support arrearages from May 1, 1959 through September 1, 1978 in the total amount of $12,948.50, plus interest "determined to be $10,264.22."

Appellant filed opposition on May 6, 1991, in which he moved to Vacate Registration of Foreign Support Order and Vacate Default. He also asked that respondent "be enjoined from any further collection efforts." At a hearing on August 16, 1991, to determine the amount of arrearages, if any, owed by appellant, he made the following offer of proof of concealment of the child by respondent as a defense to her action for enforcement of arrearages.

Appellant and respondent were "married in 1958 and separated less than a year later." During the marriage, a son, Ronald, was born to them on September 22, 1958. A judgment of divorce was entered in May of 1960 which ordered appellant to pay child support for the parties' minor child. Appellant paid child support for "less than a year," whereupon, he claims, during a visit in 1960 to respondent and the child, respondent's brother assaulted him with a knife, forcing him "to flee the area." Respondent then stated to appellant that she did not want him to "see the child ever again." Respondent also refused to accept appellant's telephone calls or allow him to visit her or the child. Soon thereafter, according to appellant's declaration, respondent "dropped out of sight...." Appellant attempted without success to locate respondent by contacting "school districts," looking in the telephone directory, and visiting respondent's "old job" and "old address."

Between 1960 and 1979, appellant claims he had "no way of contacting or paying support" to respondent. In July of 1963, respondent, after her remarriage, filed a petition to change the last name of the child to Austin. She maintains that she attempted to notify appellant of the name change, but could not locate him. Appellant insists that between 1963 and 1979 he was never contacted by respondent or anyone on her behalf, although he "maintained" permanent residency in the "Palo Alto/Menlo Park area", as did his parents and maintained a business advertisement in the yellow pages of the telephone book which included his photograph. Appellant was ignorant of the "name change" or whereabouts of the child and would have met his child support obligations had he not been excluded from the child's life by respondent's "calculated plan" of concealment.

After appellant had "given up all hope of ever contacting" his son, in 1979 he was "shocked" to be served with "an Application for Child Support Arrearages." He hired counsel to represent him in the action for arrearages instituted by respondent, and "moved to Arizona believing ... this matter had been taken care of by that attorney." Only later did appellant learn that his attorney did not make an appearance on his behalf "and that a judgment had [been] entered."

The trial court ruled that appellant's proffered "concealment" evidence was not relevant to the issue of arrearages, and refused to consider appellant's "concealment" defense. Appellant's claim that the judgment against him for arrearages was unenforceable due to respondent's delay and lack of diligence was also rejected. On January 17, 1992, the trial court issued a statement of decision in which appellant was ordered to pay the entire amount of arrearages which had accumulated during the child's minority, plus interest to the present date.

Appellant contends that the trial court erred by excluding as irrelevant his concealment evidence. He maintains that "active concealment" of a child precludes a claim for arrearages on an estoppel or waiver theory. ¹ As appellant acknowledges, case authority on the issue is split and somewhat confusing, despite applicable statutory authority.

Code of Civil Procedure section 1694 (hereafter § 1694) provided that the "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." In Moffat v. Moffat (1980) 27 Cal.3d 645, 165 Cal.Rptr. 877, 612 P.2d 967 (hereafter Moffat ), our high court declared that section 1694 evinces a legislative determination that "the child's need for sustenance must be a paramount consideration" and "bars the assertion of interference with visitation rights as a defense in a RURESA proceeding in which the duty of support is being determined." (Id. at pp. 651, 659, 165 Cal.Rptr. 877, 612 P.2d 967; see also In re Marriage of Tibbett (1990) 218 Cal.App.3d 1249, 1252, 267 Cal.Rptr. 642.) Following the decision in Moffat, Civil Code section 4382 (hereafter § 4382) was enacted; it states: "The existence or enforcement of a duty of support owed by a noncustodial parent for the support of a minor child shall not be affected by a failure or refusal by the custodial parent to implement any rights as to custody or visitation granted by a court to the noncustodial parent." "Section 4382 ... expressly provides the duty ... owed by a noncustodial parent for the support of a minor child is unaffected by the custodial parent's refusal to permit the noncustodial parent to exercise his or her visitation and/or custody rights." (Puig v. Ryberg (1991) 230 Cal.App.3d 141, 144, 283 Cal.Rptr. 604.) The purpose of section 4382 was "to further clarify that visitation and child support are separate rights with separate remedies." (In re Marriage of Tibbett, supra, 218 Cal.App.3d at p. 1253, 267 Cal.Rptr. 642.) ²

The directive of sections 1694 and 4382 is clear: enforcement of a child support obligation is not affected by the custodial parent's "interference with" or "refusal ... to implement" the visitation rights of the noncustodial parent. (In re Marriage of Tibbett, supra, 218 Cal.App.3d at p. 1253, 267 Cal.Rptr. 642.) Thus, the prevailing view is that under the governing statutes the custodial parent cannot be estopped from collecting child support arrearages even upon a showing of that parent's interference with visitation rights. (Ibid; see also Puig v. Ryberg, supra, 230 Cal.App.3d at p. 144, 283 Cal.Rptr. 604; In re Marriage of Gregory (1991) 230 Cal.App.3d 112, 115, 281 Cal.Rptr. 188; In re Marriage of Kelley (1986) 186 Cal.App.3d 613, 618- 619, 231 Cal.Rptr. 6; in rE marriage OF ryall (1984) 154 caL.app.3d 743, 753-754, 201 caL.rptr. 504; Carr v. Marshman (1983) 147 Cal.App.3d 1117, 1120-1121, 195 Cal.Rptr. 603; In re Marriage of Anderson (1981) 125 Cal.App.3d 553, 562, 178 Cal.Rptr. 117.)

A distinction has been recognized, however, between mere interference with visitation rights by the custodial parent, which the controlling statutes expressly foreclose as a defense to enforcement of a child support order, and active concealment of the child, which falls outside the purview of sections 1694 and 4382. (In re Marriage of Smith (1989) 209 Cal.App.3d 196, 201-202, 257 Cal.Rptr. 47; State of Washington ex rel. Burton v. Leyser (1987) 196 Cal.App.3d 451, 457, 241 Cal.Rptr. 812 (hereafter Leyser ); In re Marriage of Kelley, supra, 186 Cal.App.3d 613, 618-619, 231 Cal.Rptr. 6; Solberg v. Wenker (1985) 163 Cal.App.3d 475, 478, 209 Cal.Rptr. 545; In re Marriage of Daves (1982) 136 Cal.App.3d 7, 10, 185 Cal.Rptr. 770.) We are persuaded that the distinction is a valid one, based upon the statutory language and rationale underlying the legislation.

Sections 1694 and 4382 specifically provide that the child support obligation is not extinguished by the custodial parents "interference" with or "refusal ... to implement" visitation granted by the court, conduct which we do not equate with deliberate "sabotage" of visitation rights by concealment of the child. (In re Marriage of Smith, supra, 209 Cal.App.3d at p. 201, 257 Cal.Rptr. 47; Solberg v. Wenker, supra, 163 Cal.App.3d at p. 478, 209 Cal.Rptr. 545.) Thus, we find nothing in the language of the statutes which expressly prohibits an estoppel defense to an action for collection of child support arrearages based upon active concealment of the child. Had the Legislature intended to grant an exemption from equitable defenses to conduct which so subverts the parent-child relationship, we believe the terms "interference" with and "refusal ... to implement" visitation rights would have been replaced with much more encompassing language.

We are also convinced that the primary objective of the statutes--that is, the child's sustenance and welfare--cannot be served where the custodial parent seeks an award of arrearages after the child has been concealed until reaching the age of majority. ³ (In re Marriage of Smith, supra, 209 Cal.App.3d at pp. 202-203, 257 Cal.Rptr. 47; Leyser, supra, 196 Cal.App.3d at p. 458, 241 Cal.Rptr. 812.) In such a case, reimbursement to the custodial parent will not cognizably advance the child's welfare. (Ibid.) We see no reason to reward a custodial parent who has concealed the whereabouts of a child, and thereby denied the values inherent in a congenial parent-child relationship, with a belated award of support...