Marriage of Damico, In re

• Decision Date: 09 May 1994
• Docket Number: No. S033148,S033148
• Court: California Supreme Court
• Parties: , 872 P.2d 126, 62 USLW 2755 In re the Marriage of Mary and Ronald DAMICO. Mary DAMICO, Respondent, v. Ronald DAMICO, Appellant.

Page 787

29 Cal.Rptr.2d 787

7 Cal.4th 673, 872 P.2d 126, 62 USLW 2755

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

No. S033148.

Supreme Court of California In Bank.

May 9, 1994.

Richard P. Roggia, San Jose, for appellant.

Daniel E. Lungren, Atty. Gen., Roderick E. Walston, Chief Asst. Atty. Gen., Carol Ann White, Gloria F. Dehart and Mary A. Roth, Deputy Attys. Gen., for respondent.

ARABIAN, Justice.

In Moffat v. Moffat (1980) 27 Cal.3d 645, 165 Cal.Rptr. 877, 612 P.2d 967, we held that a parent under a court order to pay support for a minor child must pay that support even if the parent with custody interferes with the paying parent's right to visit with the child. We are now asked to decide whether a custodial parent who not merely interferes with visitation rights, but actively conceals the parent and child from the other parent until the child becomes an adult may thereafter seek arrearages for child support obligations accrued during the period of concealment. The Courts of Appeal are divided on the question to what extent, if any, concealment is a defense to the obligation to pay child support.

Concealment of the child and the custodial parent from the noncustodial parent until the child reaches the age of majority is different from mere interference with visitation both in degree and in kind. As a difference in degree, it obliterates the entire relationship between the child and the noncustodial parent. This alone may not be sufficient to warrant a different rule than that of Moffat v. Moffat, supra, 27 Cal.3d 645, 165 Cal.Rptr. 877, 612 P.2d 967. As a difference in kind, however, it makes impossible performance of the very child support payments that are the subject of the later arrearages action. This does distinguish Moffat. We conclude that such concealment may estop the custodial parent from seeking payment of child support arrearages which accumulated during the period of concealment. We therefore affirm the judgment of the Court of Appeal, which reached the same result.

FACTS

Appellant Ronald Damico (father) and respondent Mary Damico Austin (mother) were married in 1958 and separated less than a year later. A son was born to them on September 22, 1958. A judgment of divorce was entered in May 1960 which ordered father to pay child support. He paid the support for a short time, then stopped under circumstances that are disputed. In 1979, father was served with an application for child support arrearages. A default judgment was entered against him in June 1980 in San Francisco Superior Court determining that he owed $12,948.50 in child support arrearages from May 1959 through September 1978, plus interest in the amount of $10,264.22.

In January 1991, the Marin County District Attorney, acting on behalf of mother, filed a statement for registration of foreign support order, and served father. Father moved to vacate the registration of the foreign support order and the prior default judgment. At a hearing in August 1991 to determine the amount of arrearages, if any, father owed, he offered to prove the following.

In 1960, he visited with mother and the child in San Francisco. Mother told father that "she did not want [him] to see the child ever again and that [he] would not see the child ever again. She wanted [him] to remove [himself] from her life and from the child's life." Mother's brother then assaulted him with a knife, forcing him to flee. Father tried to call her several times to arrange to visit with the child, but the person answering would hang up as soon as he identified himself. Soon thereafter, mother "dropped out of sight and [father] could not find her or the child" despite numerous attempts to locate and contact them. From 1960 until 1979, after the child had become an adult, father "had no way of contacting or paying support to them." No one contacted him seeking support even though he was readily available. Father "had given up all hope of ever contacting [his] son in that [he] thought that [mother] had made good on her promise of never letting [him] see the child, and had effectively secreted the child from [him]."

In 1979, according to the offer of proof, father was "shocked and amazed" to be served with the application for child support arrearages. He hired counsel to represent him in that proceeding, and he "moved to Arizona believing that this matter had been taken care of by that attorney." He later learned that his attorney did not appear for him, and a default judgment was entered. Father claims that had he "had knowledge of the whereabouts of [his] child and the [mother], [he] would have made payments in a timely fashion and attempted to visit [his] child in a responsible manner."

Mother filed a declaration in which she denied concealing the child from father. Rather, she claimed, father threatened to "abduct" the child, and did not pay child support. In 1963, after she remarried, she had the child's last name legally changed to her husband's surname. From 1964 until 1978, she "had no contact with [father], nor did [she] have any knowledge about how to locate him." Finally, in 1978, she was able to locate father and serve him with a motion for an order fixing arrearages.

The trial court ruled that father's offer of proof was not relevant to the issue of arrearages, and refused to consider his "concealment" defense. No evidentiary hearing on the question was held. The court ultimately ordered father to pay the entire amount of arrearages plus interest. Father appealed.

The Court of Appeal reversed. It rejected mother's argument that the earlier default judgment precluded father from raising the concealment defense at this time. It then held that while mere interference with visitation rights by the custodial parent does not present a defense to the enforcement of a child support order, active concealment does. It remanded the case for the parties to present evidence on the question of concealment.

Mother petitioned this court to review whether "evidence of a custodial parent's concealment of a child who is the subject of a child support order [is] admissible to estop the custodial parent from claiming child support arrearages from the absent parent for the period of concealment." We granted the petition. ¹

DISCUSSION

In Moffat v. Moffat, supra, 27 Cal.3d 645, 165 Cal.Rptr. 877, 612 P.2d 967 (Moffat ), we construed Code of Civil Procedure, former section 1694, part of the former Revised Uniform Reciprocal Enforcement of Support Act, which provided in pertinent part: "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."

Also pertinent to this question is Civil Code, former section 4382, which provided: "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." This latter section was part of the chapter providing for the enforcement of judgments, orders and decrees under the Family Law Act. It was enacted before, but took effect after, the decision in Moffat, supra, 27 Cal.3d 645, 165 Cal.Rptr. 877, 612 P.2d 967. (Stats.1980, ch. 237, § 1, p. 480; see In re Marriage of Smith (1989) 209 Cal.App.3d 196, 201, 257 Cal.Rptr. 47.) It is not discussed in Moffat. ²

The cases construing these statutes assume that, although each uses slightly different language, the meaning of both is substantially identical, at least as regards the issue in this case. The parties do not suggest the statutes have different meanings. We doubt that the Legislature intended different rules to apply to proceedings under RURESA (now URESA) and the Family Law Act. The statutory language does not compel such a conclusion. We therefore construe the statutes as identical for purposes of this issue.

In Moffat, supra, 27 Cal.3d 645, 165 Cal.Rptr. 877, 612 P.2d 967, the custodial mother had "obdurately refused to comply with the visitation order and ha[d] thus denied the children their right to know and to be with their father." (Id. at p. 650, 165 Cal.Rptr. 877, 612 P.2d 967.) Because of the mandate of Code of Civil Procedure former section 1694, we held that this circumstance did not provide a defense to the obligation to pay child support. We emphasized we did not approve of the custodial parent's conduct, but concluded that "in such circumstances the child's need for sustenance must be the paramount consideration." (Id. at p. 651, 165 Cal.Rptr. 877, 612 P.2d 967.)

We noted, however, that although "RURESA provides no forum for litigating disputes over interference with custody and visitation rights, a noncustodial parent in the position of Mr. Moffat is not bereft of remedy. Such rights are initially determined by the superior court, acting under authority of the Family Law Act. (Civ.Code, § 4351.) Thus the parent whose rights are in jeopardy may seek enforcement of the judgment, order, or decree in the rendering court. (Id., § 4380.)" (Moffat, supra, 27 Cal.3d at pp. 651-652, 165 Cal.Rptr. 877, 612 P.2d 967.) We listed "several appropriate sanctions when the custodial parent acts with an intent to frustrate or destroy visitation rights," including contempt proceedings, terminating or reducing spousal support, modifying custody or child support orders, and requiring a bond to assure compliance with the visitation order. (Id. at p. 652, 165 Cal.Rptr. 877, 612 P.2d 967.) But as regards the noncustodial parent's obligation to continue to pay child support, we concluded that "by her misconduct alone in depriving the father of his visitation rights, [the custodial parent] is not estopped from pursuing the enforcement of child support under RURESA." (Ibid.; see also id. at p....