COUNTY OF SANTA CLARA v. PERRY

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Court of Appeal, Sixth District, California.

COUNTY OF SANTA CLARA, Plaintiff and Appellant, v. Delmer L. PERRY, Defendant and Respondent.

COUNTY OF SANTA CLARA, Plaintiff and Appellant, v. Cesar O. HERNANDEZ, Defendant and Respondent.

No. H015874.

Decided: June 09, 1997

George W. Kennedy, District Attorney, Patricia M. Sanford, Deputy District Attorney, for Plaintiff-Appellant. Delmer L. Perry, in pro. per. Cesar O. Hernandez, in pro. per.

The sole issue in this consolidated appeal 1 is whether child-support arrearages may be made retroactive to the filing of a governmental complaint to establish paternity and child support.   We conclude that pursuant to Welfare and Institutions Code sections 11350.1 and 11475.1, and Family Code 2 section 4009, an order for child support may be made retroactive only to the date of filing a notice of motion or order to show cause.

PROCEDURAL HISTORY

On September 20, 1995, the County of Santa Clara (County) filed an amended governmental complaint against Delmer L. Perry to establish a parental relationship and child support.   Perry was served with the complaint on December 15, 1995.   In his answer Perry admitted to being the parent of a child born on March 25, 1995.   On February 20, 1996, County filed a notice of motion for judgment for parentage, temporary support and support, among other things.

A hearing, attended by each parent in propria persona and a deputy district attorney for the public interest, was conducted on March 27, 1996.   It was recommended that on-going support commence March 1, 1996.   Each side was requested to brief the issue of retroactivity.3  On April 24, 1996, a commissioner set child support at $617 per month, payable to the Family Support Trustee.   The order provided that no arrearages would be due from the filing of the complaint to February 20, 1996.

The procedure was similar in County's action against Cesar O. Hernandez, although the record is less complete.   An amended governmental complaint to establish paternity and child support was filed on October 3, 1995.4  Hernandez admitted to being the father of a child born on September 11, 1990.   On March 5, 1996, County noticed a motion for judgment, temporary support and support, among other things.   After a hearing was conducted, a commissioner ordered Hernandez to pay child support in the amount of $433 per month.   No arrearages were assessed from the filing of the complaint to March 3, 1996.

Pursuant to Code of Civil Procedure former section 640.1, County sought review of both child support orders, contending that support should be retroactive to the filing of the complaints.   The matter was heard and taken under submission.   Thereafter, the superior court filed a statement of decision, affirming the commissioners' orders that child support is retroactive to the filing of the notice of motion.   This appeal followed.

DISCUSSION 5

County filed the instant actions pursuant to Welfare and Institutions Code sections 11350.1 and 11475.1.   These statutes authorize the district attorney to prosecute actions (1) for child support in the name of the county on behalf of a child or custodial parent, (2) to establish paternity, and (3) to recover arrearages in support payments.  (Crider v. Superior Court (1993) 15 Cal.App.4th 227, 230, fn. 3, 18 Cal.Rptr.2d 757.)

More specifically, Welfare and Institutions Code section 11350.1, subdivision (b) states in pertinent part:  “Judgment in an action brought pursuant to this section ․ may be rendered pursuant to a noticed motion, which shall inform the defendant that in order to exercise his or her right to trial, he or she must appear at the hearing on the motion.”

Thereafter, Welfare and Institutions Code section 11475.1, subdivision (f) states in part:  “In any action to establish a child support order brought by the district attorney in the performance of duties under this section, the district attorney may make a motion for an order effective during the pendency of that action, for the support, maintenance, and education of the child or children that are the subject of the action.   This order shall be referred to as an order for temporary support.   This order shall have the same force and effect as a like or similar order under the Family Code.

“The district attorney shall file a motion for an order for temporary support within the following time limits:

“(1) If the defendant is the ․ father where the child is at least six months old when the defendant files his answer, the time limit is 90 days after the defendant files an answer.”

In the instant action, the district attorney filed motions for orders for temporary support within the proper time periods.

Section 4009 provides:  “An order for child support may be made retroactive to the date of filing the notice of motion or order to show cause, or to any subsequent date, except as provided by federal law (42 U.S.C. Sec. 666(a)(9)).” 6

The District Attorney seeks to distinguish dissolution actions from paternity cases.   She argues that the present judicial form for a petition in a dissolution action no longer contains a box to check for requesting child support, whereas the form used in a governmental complaint to establish a parental relationship and child support gives notice that child support is being requested.   The inference is that proper notice in a dissolution action is required pursuant to section 4009, but unnecessary in an action brought under the Welfare and Institutions Code.

 At first blush, the distinction appears reasonable.   However, it ignores provisions of the Welfare and Institutions Code which require a “noticed motion” to obtain judgment pursuant to Welfare and Institutions Code section 11350.1, subdivision (b) and contemplate a motion to establish child support in Welfare and Institutions Code section 11475.1, subdivision (f).   The statutory scheme contained in the Welfare and Institutions Code appears to recognize the fact that, with the exception of AFDC recipients, actions for support of children born out of wedlock are no different than those for support of children born within a marriage.   That is, support operates prospectively and not retroactively.  (See § 3951;  In re Marriage of Koppelman (1984) 159 Cal.App.3d 627, 633, 205 Cal.Rptr. 629, overruled on a different point in In re Marriage of Fabian (1986) 41 Cal.3d 440, 451, 224 Cal.Rptr. 333, 715 P.2d 253.)

Citing such cases as Fernandez v. Aburrea (1919) 42 Cal.App. 131, 183 P. 366, Mathews v. Hornbeck (1927) 80 Cal.App. 704, 252 P. 667, and Richter v. Superior Court (1963) 214 Cal.App.2d 821, 29 Cal.Rptr. 826, the District Attorney notes that support arrearages have traditionally been awarded from the date a complaint is filed in a paternity suit.   However, each of these cases was decided prior to the applicable Welfare and Institutions statutes, section 4009, and its predecessor statute Civil Code former section 4700, subdivision (a).

The District Attorney takes issue with the wording of a reference to City and County of San Francisco v. Thompson (1985) 172 Cal.App.3d 652, 218 Cal.Rptr. 445 made in a footnote of the statement of decision.   She asserts that when Thompson is quoted correctly, the court assumed that in “non-AFDC cases liability for child support begins when the action begins.”  Thompson is irrelevant to our analysis.   That case addressed the constitutionality of Welfare and Institutions Code section 11350, the statute which authorizes a county to bring suit against noncustodial parents to recover AFDC benefits.   Any reference as to when support liability begins in non-AFDC cases constitutes dicta at best.

The District Attorney also contends the trial court erroneously relied on In re Marriage of Goosmann (1994) 26 Cal.App.4th 838, 31 Cal.Rptr.2d 613, a case decided by this district.   In Goosmann, husband and wife entered into a marital settlement agreement in October 1985, which provided that both parents would be jointly and equally responsible for the financial support of the minor children.   Husband petitioned for dissolution of the marriage in January 1986.   Wife filed her response on February 24, 1986, in which she requested an award of child support.   A judgment of dissolution as to status only was entered in August 1986.   Since the marital settlement agreement had not been confirmed as a judgment, husband filed an at-issue memorandum in December 1986, to set the issues covered in the agreement for trial.   However, the parties allowed the case to go off calendar and the case did not come on for trial until January 30, 1990.   In a written order resolving custody and visitation issues, the court directed the parties to seek a new court date for certain unresolved matters, including child support.   Thereafter, both parties changed counsel, and wife's attorney filed an order to show cause re child support on January 23, 1992.   The trial court ordered child support payable by husband to wife retroactive from January 1, 1990.   On appeal this district held that, pursuant to Civil Code former section 4700, subdivision (a) (now Fam.Code, § 4009), the child support award could only be made retroactive to the filing of the order to show cause in January 1992.   (Id. at pp. 844-845, 31 Cal.Rptr.2d 613.)

The Goosmann decision stands for the proposition that a party seeking child support must comply with proper procedure;  i.e., it must file a motion or an order to show cause re child support.   Contrary to the District Attorney's argument that husband never received a formal pleading for child support prior to 1992, wife's original response in February 1986 provided notice of the fact.

In conclusion, we find that child-support arrearages in non-AFDC paternity actions filed pursuant to Welfare and Institutions Code section 11350.1 may be made retroactive to the filing of a motion or order to show cause as is stated in section 4009.

DISPOSITION

The judgments are affirmed.

FOOTNOTES

1.   Santa Clara County has timely filed one appeal from two separate actions.   Consolidation is appropriate in view of the single common issue of law and fact.  (See California Casualty Ins. Co. v. Northland Ins. Co. (1996) 48 Cal.App.4th 1682, 1690, 56 Cal.Rptr.2d 434.)

FN2. All statutory references are to the Family Code unless otherwise indicated..  FN2. All statutory references are to the Family Code unless otherwise indicated.

3.   The only brief that appears in the record is that of the district attorney.

4.   There is no indication as to when the complaint was served.

5.   Neither defendant has filed a respondent's brief.   Although some courts have treated the failure to file a respondent's brief as a consent to a reversal, the better rule is to examine the record on the basis of appellant's brief and to reverse only if prejudicial error is found.  (In re Bryce C. (1995) 12 Cal.4th 226, 232-233, 48 Cal.Rptr.2d 120, 906 P.2d 1275.)

6.   42 U.S.C. section 666(a)(9) concerns recipients of Aid to Families with Dependent Children (AFDC), a circumstance not present in these cases.

MIHARA, Associate Justice.

ELIA, Acting P.J., and WUNDERLICH, J., concur.

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