IN the case of In re Marriage of Wilson, the Mother was attempting to enforce child support arrears against the Father for the period in which the child was not living with the Mother but instead was living with the Grandparents. The Father filed a request for an order in court, seeking a stay of enforcement of the child support arrears on the ground he had overpaid Mother; equitable set-aside of the child support arrearages on the ground Minor had lived with Grandparents since she was two years old; credit for child support charged during the time Minor lived with Grandparents; and set-aside of interest on arrearages. In re Marriage of Wilson, 4 Cal . App. 5th 1011, 1014, 208 Cal . Rptr. 3d 779, 780, 2016 Cal . App. LEXIS 910, *3-4. The trial court denied Father’s request because Father did not support child in his home. In appeal, the appellate court held that a family court had to consider whether it would be inequitable to allow a minor’s mother to enforce some or all of the child support arrears incurred during a certain period the minor lived with her paternal grandparents during that period and that her father had contributed to her support by providing money to the grandparents, and there was no evidence in the record that, during the period at issue, the mother provided any support for the minor.In re Marriage of Wilson, 4 Cal . App. 5th 1011, 1011, 208 Cal . Rptr. 3d 779, 779, 2016 Cal . App. LEXIS 910, *1
Fam. Code, § 3651, provides that, with certain exceptions, a support order may not be modified or terminated as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate. However, it is within the court’s equitable power to deny enforcement of the arrears on equitable grounds under certain circumstances. However, it is within the court’s equitable power to deny enforcement of the arrears on equitable grounds under certain circumstances. (Jackson v. Jackson (1975) 51 Cal.App.3d 363, 366–367 [124 Cal. Rptr. 101] (Jackson).)In re Marriage of Wilson, 4 Cal . App. 5th 1011, 1016, 208 Cal . Rptr. 3d 779, 782, 2016 Cal . App. LEXIS 910, *8
The appellate court found merit, in the peculiar circumstances of the case, in the father’s position that the trial court’s discretion to deny enforcement of a support order is not limited to circumstances in which the obligor parent cares for a child in his or her own home, but is broad enough to embrace a situation in which neither parent is raising the child at home. The record did not foreclose a conclusion that the father’s obligation to support the minor during the relevant period was discharged, in whole or in part, through the grandparents’ care of the minor on his behalf and through the payments he made to them during the period for which the mother sought arrears. Moreover, there was no evidence in the record that, during the periods at issue, when the minor lived with the grandparents, the mother provided any support for the minor. If the mother was seeking child support arrears for times that she neither cared for the minor nor provided for her financially, enforcement of the arrears might well be nothing more than a windfall to the mother, bearing no relation to any support or care the minor actually received during her childhood. In re Marriage of Wilson, 4 Cal . App. 5th 1011, 1011, 208 Cal . Rptr. 3d 779, 779, 2016 Cal . App. LEXIS 910, *1
The appellate court agreed with father’s contention that the family court’s discretion to deny enforcement of a support order is not limited to circumstances in which the obligor parent cares for a child in his or her own home, but is broad enough to embrace a situation in which neither parent is raising the child at home. In re Marriage of Wilson, 4 Cal . App. 5th 1011, 1011, 208 Cal . Rptr. 3d 779, 779, 2016 Cal . App. LEXIS 910, *1. The bottom line, parents that owe substantial arrears in child support may have a defense against enforcement under In re Marriage of Wilson if the child was not actually living with the custodial parent but was instead living with the Grandparent and where the non-custodial parent is actually paying the Grandparent for the support of the child.
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Attorney Kenneth Ursua Reyes is a Certified Family Law Specialist. He was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 747, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail [email protected] or visit our website at Kenreyeslaw.com.
