Moffat v. Moffat

• Decision Date: 10 July 1980
• Citation: 165 Cal.Rptr. 877,27 Cal.3d 645,612 P.2d 967
• Court: California Supreme Court
• Parties: , 612 P.2d 967 Tomoyo MOFFAT, Plaintiff and Respondent, v. Burnham MOFFAT, Defendant and Appellant. L.A. 31168.

Page 877

165 Cal.Rptr. 877

27 Cal.3d 645, 612 P.2d 967

Tomoyo MOFFAT, Plaintiff and Respondent, v. Burnham MOFFAT, Defendant and Appellant.

L.A. 31168.

Supreme Court of California, In Bank.

July 10, 1980.

Young & Young and Walter H. Young, Los Angeles, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Andrew D. Amerson and Linda C. Johnson, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

In this proceeding under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), ¹ we must decide whether a custodial parent whose right to enforce child support payments has been erroneously suspended by a contempt order for her willful denial of the noncustodial parent's visitation rights is entitled to maintain an independent action to compel the payment of child support.

Burnham and Tomoyo Moffat were married in 1962 and had two children: Susan, born in 1962, and Michelle, born in 1966. The couple separated during 1971, and in January 1972 an interlocutory judgment of dissolution was entered. Mrs. Moffat was awarded custody of the children, subject to reasonable visitation by their father. He was ordered to pay child support of $300 per month for each child, together with $400 per month spousal support for a period of five years and additional payments in settlement of community property.

Throughout the dissolution proceedings and immediately following entry of the interlocutory judgment, the father regularly exercised his visitation rights with the mother's cooperation. In June 1972, however, she filed for modification to terminate his visitation rights, an act he asserts was a retaliatory measure to counter his action filed two months earlier to secure her compliance with the property settlement provisions of the dissolution decree. In the modification proceedings Mrs. Moffat accused her former husband of sexually molesting their daughters and of lacking control over his "sexual aberrations"; he was consequently enjoined from visitation pending a hearing in the matter.

A final judgment of dissolution incorporating the provisions of the interlocutory judgment was entered on September 12, 1972. Five months later Mrs. Moffat's request for termination of visitation rights was heard, and the ensuing order reinstated the father's rights, expressly finding that none of the child molestation allegations were true. Mrs. Moffat nevertheless thwarted his attempts to exercise visitation rights by refusing him access to the children. In July 1973 he obtained a habeas corpus order to enforce his six-week summer visitation rights, and in August she was adjudged in contempt of that order. The judge presiding over the contempt proceedings suspended imposition of sentence and instead ordered Mr. Moffat excused from spousal and child support payments until Mrs. Moffat complied with the visitation order.

Since then Mrs. Moffat has systematically endeavored to circumvent the visitation order through an unrelenting variety of legal proceedings. These include a petition to give up her children and to have them declared wards of the juvenile court, a proceeding in which she reasserted the molestation accusation previously found to be untrue; a motion to terminate the July visitation order; and criminal charges against Mr. Moffat for failure to provide (Pen. Code, § 270). ² None of her efforts were successful; in affirming the order dismissing the criminal charges, the appellate department of the superior court noted the dismissal rested, in part, on the trial judge's conclusion that the charges were filed for harassment purposes and constituted an abuse of process by Mrs. Moffat.

To this day Mrs. Moffat has obdurately refused to comply with the visitation order and has thus denied the children their right to know and to be with their father. In September 1975 she resigned her job with the office of the district attorney and moved across the country to Virginia, taking the children with her, and there applied for and received public assistance. On September 26, 1975, she filed a petition under RURESA with the district court in Virginia, alleging Mr. Moffat has refused to provide support since July 1973. The petition was returned to California for processing and final hearing took place in September 1977. ³ The court commissioner entered findings of fact that although Mrs. Moffat for at least two preceding years had willfully and deliberately refused the father his visitation rights, and had been held and was then presently in contempt of a prior visitation order, she was not estopped from seeking child support under RURESA. In accordance with the commissioner's recommendation that "A duty of support exists pursuant to the authority of Code of Civil Procedure section 1694 despite the denial of visitation," and over Mr. Moffat's objections, the court entered a support order in the amount of $225 per month per child, plus a 2 percent court trustee fee. Mr. Moffat appeals.

In seeking reversal of the order, Mr. Moffat complains of the court's failure to recognize that estoppel may be a valid defense in a RURESA proceeding. His contention appears to rest on three independent theories: (i) that the flagrant misconduct of a custodial parent in defeating the noncustodial parent's visitation rights precludes her from seeking child support payments under RURESA; (ii) that a contumacious litigant is not entitled to enforcement of a child support order while standing in contempt of court; and (iii) that a prior order suspending child support payments is res judicata on the issue of duty of support in a RURESA proceeding. We conclude that Mrs. Moffat is not estopped from seeking relief under RURESA by either her denial of Mr. Moffat's visitation rights or her contempt status, but that she is nevertheless precluded in this proceeding from collaterally attacking the contempt order.

I

We first consider whether the denial of visitation rights establishes a sufficient defense to the RURESA action.

Section 1694 provides, as relevant: "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 seeking to avoid the plain meaning of the statute, Mr. Moffat frames the following issue: "Where the father has consistently performed his duty of support, can a mother leave California, quit her job, go on relief in another state, for the express purpose of depriving him of visitation with his children and still use RURESA, and not be subject to (the) defense of estoppel because of CCP Section 1694? " Despite our sympathy for a noncustodial parent thrust into that predicament, our reply, in short, is affirmative.

We emphasize that we in no way approve of such conduct by a custodial parent. But as the court observed in In re Marriage of Ciganovich (1976) 61 Cal.App.3d 289, 293, 132 Cal.Rptr. 261, 263: "Objective of (RURESA) is to aid stationary mothers in exacting child support from peregrinating fathers. The peregrinating mother reverses that objective. . . . The reciprocal law assures the continued flow of child support. It also facilitates the mother's destruction or impairment of the father's visitation rights and paternal interests." Regardless of whether we might view this as an unjust result from the noncustodial parent's point of view, in such circumstances the child's need for sustenance must be the paramount consideration. (Id. at p. 294, 132 Cal.Rptr. 261; McDowell v. Orsini (1976) 54 Cal.App.3d 951, 964-968, 127 Cal.Rptr. 285.)

Although the intendment of section 1694 is that 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.) The Ciganovich court identified several appropriate sanctions when the custodial parent acts with an intent to frustrate or destroy visitation rights. These include holding the parent in contempt, terminating or reducing spousal support, and requiring a bond to assure compliance with the visitation order. (61 Cal.App.3d at p. 293, 132 Cal.Rptr. 261.) Moreover, the court has authority to award a change of custody or to otherwise modify the custody and child support provisions of the original decree. (Ibid.; Civ.Code, §§ 4603, 4700.) The deliberate sabotage of visitation rights not only furnishes ground for modification, it is a significant factor bearing on the fitness of the custodial parent. (Ciganovich, at p. 294, 132 Cal.Rptr. 261.)

In seeking a writ of habeas corpus and filing a contempt action for violation of the visitation order, Mr. Moffat appropriately sought vindication of his and the children's visitation rights. Unfortunately he was unable to overcome Mrs. Moffat's tenacity. Nevertheless, under existing authority we can only conclude that by her misconduct alone in depriving the father of his visitation rights, she is not estopped from pursuing the enforcement of child support under RURESA.

II

In further support of his estoppel argument, Mr. Moffat identifies Mrs. Moffat's contempt of the July 1973 visitation order as yet another aspect of her aggregate misconduct. We acknowledge the general principle that one who flagrantly and persistently defies a court order is not entitled to maintain an action and to ask the aid and assistance of a court while standing in contempt. (MacPherson v. MacPherson (1939) 13 Cal.2d 271, 277, 89 P.2d 382; Estate of Scott (1957) 150 Cal.App.2d 590, 594, 310 P.2d 46.) The rule has commonly been applied, but is not limited to, situations in...