S.C. v. G.S.

• Decision Date: 12 July 2019
• Docket Number: H045093
• Citation: 250 Cal.Rptr.3d 696,38 Cal.App.5th 591
• Court: California Court of Appeals Court of Appeals
• Parties: S.C., Plaintiff and Respondent, v. G.S., Defendant and Respondent; Santa Clara County Department of Child Support Services, Intervenor and Appellant.

38 Cal.App.5th 591

250 Cal.Rptr.3d 696

S.C., Plaintiff and Respondent,

v. G.S., Defendant and Respondent;Santa Clara County Department of Child Support Services, Intervenor and Appellant.

H045093

Court of Appeal, Sixth District, California.

Filed July 12, 2019

Counsel for Intervenor/Appellant: Xavier Becerra, Attorney General, Julie Weng-Gutierrez, Senior Assistant Attorney General, Linda M. Gonzalez, Supervising Deputy Attorney General, Ricardo Enriquez, Deputy Attorney General

Counsel for Plaintiff and Respondent: No appearance

Counsel for Defendant and Respondent: No appearance

DANNER, J.

This dispute centers on child support arrears owed by respondent G.S. (father) to respondent S.C. (mother) pursuant to an order issued by the trial court in 1995.¹ In March 2015, appellant and intervenor Santa Clara County Department of Child Support Services (the Department) brought a motion seeking to increase father's monthly child support payments. In the course of litigation over the motion, father for the first time informed the Department and the trial court that he had been incarcerated from 1998 to 2005. Prior to 2015, father had not sought a modification of the child support order.

In February 2016, the trial court granted the Department's motion to increase father's monthly payments but also, on the court's own motion, awarded father "equitable credit" for father's period of incarceration. Invoking its authority under Family Code section 290,² the trial court reduced the amount owed by father in child support by approximately $70,000.

The Department appeals the trial court's February 2016 order, arguing that the trial court lacked authority to retroactively adjust father's arrears. For the reasons discussed further below, we agree. Although legislation enacted in 2010 and 2015 suspended the accrual of child support for incarcerated parents, these statutes do not apply retroactively. Father's child support order was issued in 1995, and he did not seek modification of it either when he was committed to prison or upon his release. The trial court lacked the authority in 2016 to reduce father's arrears by the amount father had accrued during his incarceration from 1998 to 2005. We therefore reverse the order.

I. FACTS AND PROCEDURAL BACKGROUND

The facts in this appeal are undisputed. Father is the parent of daughter A.C., born in 1994. In 1995, following a request by mother for child support pursuant to a civil paternity action in which father participated, the trial court ordered father to pay $360 per month in child support (the 1995 order). The Department did not participate in the paternity action leading to the 1995 order.

Father was incarcerated from approximately May 1998 to July 2005. Father never sought to modify, quash, or otherwise terminate the 1995 child support order based on his incarceration. In approximately 2004, mother sought assistance from the Department in enforcing child support against father.³

In March 2015, the Department filed a notice of motion and requested a hearing for the purpose of increasing father's monthly payment to liquidate his arrears. The Department noted it was requesting an order to "[a]dd/[i]ncrease liquidation of arrears consistent with the obligor's income," and, more specifically, that father be ordered to pay at least $500 per month to liquidate his debt. In further support of its request, the Department stated that the child was now emancipated, father owed approximately $113,000 in arrears, including interest, and the previously-ordered monthly payback of $40 was insufficient to pay the accruing interest charges of over $400 per month.

In July 2015 the parties appeared for a hearing on the Department's motion. The Department noted that father had offered to pay $80 per month because he believed he would soon get a job. Mother objected to the amount as too low and that it was a method of "delay," but she stated that $100 would be "sufficient." The trial court told father he needed to secure full-time employment. The trial court scheduled hearings for both August and December 2015 to make sure father was working at least 25 hours a week. The trial court issued an interim order finding that father owed approximately $114,000 in child support arrears and ordering monthly payments of $80.

At the end of the July 2015 hearing, father asked, "how do I go about filing a motion?" When the trial court asked father about the subject of the motion, father replied "[f]or arrears." When the trial court expressed confusion, noting they were already there "on arrears," the Department's representative replied, "We're here on the arrears payment, Your Honor. Father's disputing the total amount of arrears which are in excess of $114,000 right now. [¶] Father's alleging that he was incarcerated for several years." This was apparently the first time that father had informed the Department or the trial court that he had been to prison.

The trial court told father that he had to bring written proof that he had been incarcerated. Father asked, "[d]o I have to file the motion ... or just bring you the paperwork?" The court responded, "why don't you get [the paperwork] before August and then you can bring it up to me at that point. The Department is not anxious to have a lot of motions filed. If you can show evidence that you were incarcerated, it may be that talking together you can come to an agreement and not need a motion."

The trial court filed an order in August 2015 that increased father's monthly payments to $100.⁴ On December 9, 2015, father and the Department appeared for a further hearing on the issue of arrears. Mother was not present. The attorney for the Department told the trial court that they were before the court on "the Department's motion to increase the arrears payback..... Father owes in excess of $100,000 in arrears. We were asking for that to be increased." The Department also stated "[t]he other issue of note is that the Court on its own order did add a determination of arrears to be heard today.... Father alleged prior periods of incarceration.... He was ordered to provide some documentation today from his ... [¶] parole agent. It does look like he has a letter that states he was in custody from May 3rd of 1998 through July 3rd of 2005."

The Department stated that mother was not amenable to forgiving or waiving the arrears, and that because of the 1995 support order the court did not have the equitable power to forgive the arrears accrued during father's incarceration. In support of its position, the Department relied on this court's decision in County of Santa Clara v. Wilson (2003) 111 Cal.App.4th 1324, 4 Cal.Rptr.3d 653 ( Wilson ).

The trial court asked the Department, "we're here today because of Father's request?" The Department replied, "Actually, Your Honor, we're on today because the Department requested an increase in the arrears payment. The Court after hearing Father's testimony regarding his incarceration periods asked our office to prepare an audit which we did and we served him." As of the date of the December 2015 hearing, the Department calculated father's arrears at $115,784.95. The Department reiterated its stance that pursuant to Wilson "retroactive modification is not permitted and the arrears that accrued prior to the motion cannot be forgiven." The trial court stated it would "do some research because I remember I did this once before and I found a means of equitable relief and I need to go back and find it again. It was a narrow, narrow passageway."

The next day, on December 10, 2015, the trial court issued an order taking under submission "the issue of arrears." In its order, the trial court found that the Department's calculation of arrears done in July 2015 "does not take into account incarceration time." The trial court ordered the Department to "recalculate the arrears, taking into account and suspending obligation for payment by father for the months he was incarcerated, plus one month after his release." In the order the trial court set a new hearing date of January 28, 2016.

On January 28, 2016, all parties, including mother, appeared for a final hearing on the arrears owed by father. The trial court asked the Department whether its latest calculation of father's arrears "reflects the most recent order of the Court giving credit to Father from 1998 to [20]05." The Department stated that it had done a calculation pursuant to the court's order that resulted in an arrears total of $40,747.45.

The Department again disputed that the trial court had authority to forgive the arrears father accrued while incarcerated. The trial court heard testimony from father that, based on his current wages, father had only $300 per month after he paid his bills. The trial court further noted that the interest alone on his arrears amounted to over $400 per month.

The trial court stated that it "intend[ed] to essentially sustain my previous ruling, that is order that pursuant to Section 290 of the Family Code, and other equitable principles, that the period ... May 1998 through I think August 2005, because of his incarceration, support during that time period should be suspended. [¶] And that's the extent of my ruling. I'm not affecting interest. I'm not affecting anything else."

Mother objected, stating "it's not my fault that he went to jail." She argued that the system was being too "forgiving" and noted that she had worked two jobs to support her family. The trial court replied, "[i]f in May 1998 [father] sent a letter to the Department saying I've just gone to prison, what do I do to suspend my payments? The Department would have in May of 1998 helped him in one manner or another file the appropriate papers so that his payments would be suspended for that time period that he was in jail. So you would have the exact same argument, which I respect, but he would then be entitled to relief, legal relief."

The trial court "sustain[ed] the prior finding giving equitable...