Did Mother waive child support?
After a lengthy custody battle, where the parents were in and out of court numerous times over the course of a couple of years, the parents reached a stipulation. Essentially, mother indicates that she will drop the child support and not reopen the case with the Department of Child Support Services if Father just stays away from the child. He agrees that he would cooperate with a step parent adoption. Mother was given sole legal and sole physical custody and the parents agreed that father would have no visitation. Essentially, there would be no child support if father just stayed away. At firs, father did comply with the agreement. The step parent adoption was simply never pursued by the mother and her husband and the father was not visiting. However, after a couple of years, father began seeing the child again and mother agreed to try to reestablish a relationship. After a few months of this arrangement, mother requested financial assistance of the father. He immediately stopped seeing the child and mother says he essentially disappeared again. He did not have contact with the child for several years until recently he tried to contact the child again. Mother reopened her case with the Department of Child Support Services. Mother argues that be trying to establish contact with the child, father has breached the agreement. Mother argues that father can't just pop in and pop out of the child's life.
So, the question of this case is: Did Mother waive child support?
Here is the argument that we presented on behalf of the mother in this case.
Father argues that the court should retroactively modify child support to zero on the date of the initial agreement. The statutory and case law is clear: there is no retro-active modification of child support orders further that the date of filing the request for order. As applicable here, section 3651, subdivision (c)(1) (section 3651(c)(1)), states: “[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.” This statute “applies whether or not the support order is based upon an agreement between the parties.” The agreement is clearly unenforceable because there is no clear intent regarding the amount of child support. The agreement says, “mother shall drop current child support” and “If all of the stipulations in this agreement are met mother agrees not to reopen the child support case.” Mother contends that father violated the agreement when he attempt reunification with the child. Mother argues that father violated the agreement that states “father will have visits with the child through mail only.” He admitted that he knew he was supposed to stay away. In fact, the intent was for father to stay away and for him to sign a consent for a step parent adoption. The step parent adoption never occurred and he knew that it did not occur.
As the court points out, Several Courts of Appeal have held that section 3651(c)(1) precludes a trial court from modifying or forgiving accrued support payments—arrearages. (See County of Santa Clara v. Wilson (2003) 111 Cal.App.4th 1324, 1327, 4 Cal.Rptr.3d 653 [“retroactive modification of accrued child support arrearages is statutorily barred”]; In re Marriage of Cordero (2002) 95 Cal.App.4th 653, 667–668 & fn. 21, 115 Cal.Rptr.2d 787 [trial courts lack authority to waive or forgive interest on past due child and spousal support for same reason courts cannot retroactively modify or terminate arrearages themselves]; In re Marriage of Perez (1995) 35 Cal.App.4th 77, 80, 41 Cal.Rptr.2d 377 [trial court exceeded its jurisdiction in reducing child support arrearages from $5,000 to $2,000].) One Court of Appeal has concluded that, just as a trial court cannot modify or forgive arrearages, the parties cannot waive arrearages by agreement or other conduct. (See In re Marriage of Hamer (2000) 81 Cal.App.4th 712, 718–722, 97 Cal.Rptr.2d 195.)
Father will argue that mother waived the child support and set it at zero. Mother argues that she would never be here if father would have complied with the intent of the agreement and just stayed away. Mother also counters that there is no legal authority for the position of waiver. “[T]he Family Code does not expressly address whether a waiver defense (voluntary relinquishment of [a] known right) may ever be cognizable in an action to collect unpaid child support. No known reported authority under current law, however, has recognized such a waiver defense based on conduct (i.e., implied or inferred waiver). And, conceptually, it seems difficult to reconcile an implied waiver rule with the statutes making support orders enforceable until paid in full (Fam.C. §§ 291(a), 17400(e)) and barring retroactive modification of arrearages and interest thereon (Fam.C. § 3651(c)).” (Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 6:739.10, pp. 6–293 to 6–294.) As the court held in In re Marriage of Sabine M. & Toshio M., 153 Cal. App. 4th 1203, 1216–17, 63 Cal. Rptr. 3d 757, 767 (2007).
The doctrines of waiver and estoppel have their place in support proceedings. (See In re Marriage of Damico, supra, 7 Cal.4th at p. 681, 29 Cal.Rptr.2d 787, 872 P.2d 126.) But, in general, arrearages—support payments that are past due—cannot be forgiven. Courts previously recognized an exception to the general rule, applying the doctrine of laches to bar the recovery of arrearages. (See In re Marriage of Fellows (2006) 39 Cal.4th 179, 184–185, 46 Cal.Rptr.3d 49, 138 P.3d 200 [discussing cases].) In 2002, however, the Legislature enacted section 4502, subdivision (c) (now § 291, subd. (d)), limiting the defense of laches to “any portion of the judgment owed to the state.” This statute is retroactive.
As one judicial officer pointed out: “Every family law attorney knows that courts will not enforce promises by one parent to hold the other parent harmless from any claims of child support.” [Marriage of Buzzanca (1998) 61 CA4th 1410.
Father argues that the child support amount should be zero but the agreement did not contain the mandatory language of Family Code Section 4065.
The court cannot approve stipulated child support below the presumptively-correct formula amount unless the parties declare all of the following (Fam.C. § 4065(a)):• They are fully informed of their rights concerning child support (Fam.C. § 4065(a)(1));• The order is being agreed to without coercion or duress (Fam.C. § 4065(a)(2));• The agreement is in the children's best interests (Fam.C. § 4065(a)(3));• The children's needs will be adequately met by the stipulated amount (Fam.C. § 4065(a)(4)); and• The right to child support has not been assigned to the county pursuant to Welf. & Inst.C. § 11477 (public assistance cases) and no public assistance application is then pending (Fam.C. § 4065(a)(5). [See Marriage of Laudeman, supra, 92 CA4th at 1013-1014, 112 CR2d at 381 (citing text)]
The language of this section is mandatory. If Father’s position is to be considered, then all the language under this section MUST be present. There is absolutely no language anywhere near what is required nor is the code section even mentioned in the agreement. The obligation to provide the information required for a downward departure from the child support guidelines arises sua sponte, and the court's failure to comply with the statute's procedural requirements, standing alone, constitutes ground for reversal of a child support order and remand for compliance. Y.R. v. A.F. (Cal.App. 2 Dist. 2017) 215 Cal.Rptr.3d 577.
The Child support order was never modified and as a result the interest continues to accrue.
The court has held that interest continues to accrue on child support arrears at the legal rate of interest. The interest accrues as a matter of law even as to unpaid installments that became due under the original order during a period when the trial court erroneously suspended support payments. “As with all civil judgments which are affirmed, or … modified on appeal, post-judgment interest accrues from the date of the original judgment rather than from the judgment following the remittitur.” [Marriage of Hubner, supra, 124 CA4th at 1090-1091, 22 CR3d at 554-555 (emphasis added) (trial court erroneously suspended H's Fam.C. § 3901(a) obligation to pay support while high school child participated in AFS exchange program in Japan, and appellate court reversed, reinstating original obligation)] The interest accrues as a matter of law even as to unpaid installments that became due under the original order during a period when the trial court erroneously suspended support payments. “As with all civil judgments which are affirmed, or … modified on appeal, post-judgment interest accrues from the date of the original judgment rather than from the judgment following the remittitur.” [Marriage of Hubner, supra, 124 CA4th at 1090-1091, 22 CR3d at 554-555 (emphasis added) (trial court erroneously suspended H's Fam.C. § 3901(a) obligation to pay support while high school child participated in AFS exchange program in Japan, and appellate court reversed, reinstating original obligation)]
The court must order a payment plan on the arrears. The court, in its discretion, may craft a schedule or plan for payment of support arrearages, but it has no discretion to waive or forgive any part of a support arrearages debt. Support orders are not retroactively modifiable as to accrued arrearages.
Laches does not apply
The absence of a statutory limitations period on the enforcement of Family Code judgments generally does not preclude application of the equitable doctrine of laches—the defense of unreasonable delay in taking enforcement action to the prejudice of the judgment debtor. However, a laches defense may be raised or considered in an action to enforce a child, family or spousal support judgment only with respect to that portion of the judgment (if any) owed to the state (i.e., for public assistance reimbursement or as custodial parent's assignee in public assistance cases). [Fam.C. § 291(d); Marriage of Boswell, supra, 225 CA4th at 1177, 171 CR3d at 104 (citing text); see also Marriage of Fellows (2006) 39 C4th 179, 186-190, 46 CR3d 49, 54-57 (decided under identically-worded predecessor to § 291(d))—although it took effect 1/1/03, no-laches-defense statute is retroactively applicable in all cases, regardless of when support arrearages accrued; and ¶ 6:739]
There are several takeaways from this trial:
1. The parties did not have attorneys at the time of making this agreement. The agreement may have been enforceable if drafted by an attorney. The drafting of the agreement was too vague to be enforceable.
2. There can be an accord and satisfaction of an outstanding child support arrearage. But again, this should be handled by an experienced child support attorney.
3. It is never in the best interest of a child for a parent to pop into their lives and then disappear.