Marriage of Utigard, In re
| Citation | 126 Cal.App.3d 133,178 Cal.Rptr. 546 |
| Court | California Court of Appeals |
| Decision Date | 25 November 1981 |
| Parties | In re the MARRIAGE OF Lawrence A. and Mary Lou UTIGARD. Lawrence A. UTIGARD, Respondent, v. Mary Lou UTIGARD et al., Appellants. Civ. 20631. |
Michael R. Farrah, San Francisco, for respondent.
Mary Lou Utigard (Mary Lou) and four of her adult children appeal from the judgment (writ of execution) which determined that Lawrence A. Utigard (Lawrence) owed Mary Lou, but not the children, over $12,000 in arrearages for child support. 1 The primary issue is whether the children are entitled to enforce support orders issued to their mother to avoid the bar of a statute of limitations applicable to her. We hold that they are not and affirm the judgment.
Mary Lou and Lawrence separated in 1970 and, in 1971, an interlocutory decree of dissolution was entered; Mary Lou was given custody of the children and Lawrence was ordered to provide $300 per month for child support. The eight children of the marriage then ranged from 7 to 19 years of age. Lawrence repeatedly failed to provide child support as ordered and Mary Lou, on four separate occasions, sought issuance of a writ of execution to obtain the arrearages. In May 1975, the court modified the judgment, ordering child support only for the four remaining minor children in the amount of $75 per child per month to be paid to the Business Administration Division of the San Mateo Department of Health and Welfare. Since then, Lawrence has failed to make any child support payments, except for $800 which he paid directly to Mary Lou.
In September 1980, Mary Lou and the four adult children (the children who were minors when the judgment was modified in 1975) filed a document entitled "cross-complaint" to enforce the child support order. In addition, Mary Lou moved to join Lawrence's present wife in the action. On December 22, 1980, they filed an amended cross-complaint for money judgment and for a writ of execution. Their purpose was to bring the children into the action as the real parties in interest.
On December 26, 1980, the court ruled in part as follows: "The motion for joinder is denied.... (P) The Court finds that the children are not barred by the statute of limitations from enforcing their right to child support not paid under a dissolution In February 1981, Lawrence moved for a modification of child support. Thereafter, the "complaint" for money judgment, writ of execution and the motion for modification for child support were consolidated and tried by the court. Judgment was subsequently entered in favor of Mary Lou, granting her a writ of execution in the amount of $12,475, plus interest, representing accrued child support unpaid by Lawrence. Unhappy with the judgment for numerous reasons, Mary Lou and children appeal.
judgment, but the children are not parties herein, and the 'cross-complaint' is not authorized to be litigated in a family law act proceeding pursuant to (California Rules of Court) Rule 1212." 2
To understand the children's purpose for seeking execution in their names requires a brief explanation.
Sometime after the final decree of dissolution, Lawrence remarried. In 1975, after Mary Lou sought a writ of execution for then accrued child support, Lawrence quitclaimed his interest in a home owned by himself and his new wife (Andrea) to Andrea. Mary Lou knew of the conveyance, but made no effort to have it set aside. When she filed this action in September 1980, it was her intent to set aside the conveyance pursuant to the Uniform Fraudulent Conveyance Act. (Civ.Code, § 3439 et seq.) But the trial court ruled that she was barred by the statute of limitations (Code Civ.Proc., § 338, subd. 4) from moving to set aside the conveyance. It then became imperative for the judgment to be issued in the name of someone who could attempt to set aside the alleged fraudulent conveyance. Apparently, Lawrence has no other assets which can be levied upon to satisfy the writ of execution. Because the children are not barred by the statute of limitations from attempting to set aside the conveyance, 3 both they and Mary Lou want the writ of execution to issue in their names.
We are thus presented a case in which no issue is tendered concerning the present or future needs of the children, nor any issue concerning the relation of the unpaid support to the children's needs. Indeed, "(t)he basic duty of support exists only during the minority of the child(ren) ...." (6 Witkin, Summary of Cal.Law (8th ed. 1974) Parent & Child, § 130, p. 4647.) The children's intervention arises, so far as this record is concerned, solely from their understandable desire to rescue their mother from the misfortunes of the bar of limitations.
The trial court ruled that the children are not proper parties to the enforcement action because the "cross-complaint" is a "proceeding" pursuant to rule 1212 of the Family Law Act as to which, generally, the only parties are husband and wife. (Cal. Rules of Court, rule 1211.) We disagree. However, for reasons shortly to appear, the children have no standing to enforce the support orders by execution.
The Family Law Rules "apply to every action and proceeding" under the Family Law Act, "and, unless these rules elsewhere explicitly make them applicable, do not apply to any other action or proceeding." (Cal. Rules of Court, rule 1205.) The term "proceeding," as used in the rules, "means a proceeding pursuant to the Family Law Act for dissolution of marriage, for nullity of marriage, or for legal separation of the parties." (Rule 1201, subd. (c).) The term "action" is used to refer to other actions contemplated by the Family Law Act, e. g., an action against the parent for support of a child. (Civ.Code § 4703; 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 737, pp. 2357-2358.)
Rule 1211 provides: "(a) Except as provided in subdivision (b) or in rules 1250 through 1255, the only persons permitted to be parties to the proceeding are the husband and wife." (Emphasis added.) Because this is not a "proceeding," however, rule 1211 does not apply. Rather, the applicable rule is rule 1207, which provides in part: "In any action pursuant to the Family Law Act but not otherwise subject to these rules by virtue of subdivision (c) of Rule 1201, including those proceedings authorized by Sections 4600, 4603, and 4703 of the Civil Code, all provisions of law applicable to civil actions generally apply regardless of nomenclature if they would otherwise apply to such actions without reference to this rule ...." (Emphasis added.)
The "cross-complaint," whatever else it is, is not a proceeding described in rule 1201, subdivision (c).
The question remains whether the children may seek a writ of execution in their own names to enforce Lawrence's duty to pay pursuant to past support orders.
Civil Code section 4380 provides that a support order may be enforced by execution. That brings into play the provisions of Code of Civil Procedure section 681. "(A) support order, ... may ... be enforced by the ordinary process of levying execution." (6 Witkin, Summary of Cal.Law, supra, Parent and Child, § 138, p. 4653.) Accrued support arrearages are treated as a judgment for money (Jackson v. Jackson (1975) 51 Cal.App.3d 363, 366, 124 Cal.Rptr. 101) and a writ of execution issues as a matter of right as the amounts become due and are unpaid (Hunter v. Hunter (1959) 170 Cal.App.2d 576, 581, 339 P.2d 247), subject to equitable consideration (In re Marriage of Sandy (1980) 113 Cal.App.3d 724, 169 Cal.Rptr. 747).
However, the right of execution is limited by section 681 4 to "the party in whose favor judgment 'is given ....' " (5 Witkin, Cal.Procedure (2d ed. 1971) Enforcement of Judgment, § 5, p. 3391.) (Cal. Debt Collection Practice (Cont.Ed.Bar 1968) § 17.16, p. 376.) Although support orders are in some respects subject to different rules (see 5 Witkin, Cal.Procedure, supra, § 9, pp. 3393-3395), these do "not set them apart from other California judgments in terms of enforcement." (Wyshak v. Wyshak (1977) 70 Cal.App.3d 384, 390, 138 Cal.Rptr. 811; see also Dampier v. Dampier (1957) 155 Cal.App.2d 483, 318 P.2d 37.)
Mary Lou is subject to the bar of a statute of limitations on the theory that she is seeking, not funds for the current support of the children, but reimbursement for funds she has already expended for their support.
The children nonetheless claim that, as the real parties in interest in a child support order, they are entitled to enforce the orders for past due support. The issue turns, we believe, upon whether the children are the beneficiaries of the arrearages sought by execution.
Where the purpose of securing the arrearages is reimbursement of a parent for having supported the children, the beneficiary is the parent and not the child. In Di Corpo v. Di Corpo (1948) 33 Cal.2d 195, 200 P.2d 529, the court affirmed the denial of a writ of execution to enforce a child support order for failure of the divorced wife to diligently locate her ex-husband's property within five years (now ten years (Code Civ.Proc., § 685)) of the judgment. In answer to the argument that the children should not be punished for their mother's lack of diligence, the court said: ...
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