IN RE: the MARRIAGE OF Linda Sue and Steven P. LEEPER.

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Court of Appeal, First District, Division 4, California.

IN RE: the MARRIAGE OF Linda Sue and Steven P. LEEPER. Linda Sue LEEPER, Appellant, v. Steven P. LEEPER, Respondent.

A033734.

Decided: April 16, 1987

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Ronald E. Niver, Josanna Berkow, Deputy Attys. Gen., San Francisco, for appellant. Gary J. Lee, San Francisco, for respondent.

In a contempt petition, appellant Linda Sue Leeper alleged that her former husband, respondent Steven P. Leeper, failed to make required child support payments.   Linda sought arrearages to be paid to the county to reimburse it for public assistance that the Leeper children had received.   After hearing, the court relieved Steven of his obligation to pay any arrearages or to reimburse the county for public assistance received by the children.   The trial judge based his decision on a finding that the children had been concealed from their father in violation of his visitation rights and that Linda and the county—her assignee—were estopped from collecting arrearages.   The trial court reached these conclusions under the compulsion of Solberg v. Wenker (1985) 163 Cal.App.3d 475, 209 Cal.Rptr. 545.

On appeal, Linda claims, inter alia, that Solberg was wrongly decided and that concealment by the custodial parent is not a defense to an action for child support.   We agree with this contention and reverse.

I. FACTS

The Leepers were married in 1970.   They had two sons before their marriage was dissolved in 1974.   At the time of dissolution, the children's maternal grandmother, Shirley Beal, was awarded custody of the two boys.   Both parents were allowed visitation and Steven was ordered to pay $150 monthly child support.   Although it appears that Linda took actual custody of the children soon after dissolution, no modification of the original child custody order occurred until 1977.   Steven paid partial child support only three times, totaling $150.

Steven testified that he maintained contact with the children through 1974.   Later, when he attempted to see his sons, Beal told him that they were living with Linda.   Beal refused to tell him their location, saying she believed it was better that he not know their whereabouts and that if Linda wanted Steven to know where she was, she would contact him herself.   Steven continued to make efforts to contact Linda and his sons through Beal.   Once, he heard children's voices coming from behind the Beal house, but was unsure if they were those of his children.   He testified that Beal refused to let him in her house.

On January 7, 1975, Linda married Danny Littell, a friend of Steven's from their military days.   Steven knew of the marriage and that the couple was living in Oregon.   He also knew the address of Littell's parents in Oregon.

In 1977, Linda obtained a modification of the original custody order, transferring custody of the two boys from Beal to her.   In 1978, Steven went to Oregon where he knew the Littells were living.   While he was there, Littell's parents pointed out Danny and Linda's home.   Steven visited the children that day.   He told Linda he would return to see them the following day, but they were not at home when he arrived.

After Steven returned to California, he called Littell's parents and Beal but they were not helpful.   On October 4, 1978, he filed a petition for contempt against Linda, contending that he had been refused reasonable visitation.   He also alleged that he had been told that his children did not know him, that he should not try to see them, and that no visitation would be allowed to him at all.   The record does not indicate whether this petition was pursued.

At some point, Linda began receiving Aid to Families with Dependent Children payments for the children.   In August 1985, Linda filed a contempt petition against Steven in order to collect child support arrearages dating back to 1974.   In October 1985, Steven agreed to pay $50 per month to the county on the arrearages pending trial.

At trial, the evidence indicated that Steven owed $17,550 in arrearages.   Based on the facts adduced at trial, the lower court found that Linda had concealed the children from Steven.   On the basis of Solberg v. Wenker, supra, 163 Cal.App.3d 475, 209 Cal.Rptr. 545, the trial court concluded that Linda was thus estopped from collecting child support arrearages.   Linda filed a timely appeal from the order and is represented by the Attorney General.   (See Code Civ.Proc., § 904.1, subd. (b).)

II. CONCEALMENT

On appeal, Linda challenges the trial court's finding of concealment.   The trial court relied solely on Solberg v. Wenker, supra, 163 Cal.App.3d 475, 209 Cal.Rptr. 545 for its finding that Linda's concealment of her children from Steven estopped her from collecting child support arrearages that he owed.   However, the trial judge criticized the concealment defense described in Solberg as ambiguous and susceptible to abuse.   He urged Linda's attorney to appeal his decision and suggested this court reject Solberg 's concealment-interference distinction.

Traditionally, cases have recognized that a custodial parent may be estopped from collecting child support arrearages from the noncustodial parent if the custodial parent interferes with the noncustodial parent's visitation rights.   (See Kaminski v. Kaminski (1970) 8 Cal.App.3d 563, 564–568, 87 Cal.Rptr. 453.)   In 1970, the Legislature enacted section 1695 [now renumbered section 1694] of the Code of Civil Procedure, providing that the enforcement of a child support obligation “is unaffected by any interference ” with court-granted visitation rights.   This provision became effective in 1971.  (See Stats.1970, ch. 1126, § 31;  see also Gov.Code, § 9600, subd. (a).)  Although cases decided after the effective date of the statute occasionally found the custodial parent to be estopped, relying on Kaminski and its progeny (see In re Marriage of Daves (1982) 136 Cal.App.3d 7, 9–11, 185 Cal.Rptr. 770;  Szamocki v. Szamocki (1975) 47 Cal.App.3d 812, 818–820, 121 Cal.Rptr. 231), in most of the post–1970 cases, appellate courts applied Code of Civil Procedure section 1694 and did not estop the custodial parent from collecting past due child support despite that parent's frustration of the noncustodial parent's visitation rights.  (See In re Marriage of Roesch (1978) 83 Cal.App.3d 96, 103–104, 147 Cal.Rptr. 586, cert. den., 440 U.S. 915, 99 S.Ct. 1232, 59 L.Ed.2d 465;  Smith v. Superior Court (1977) 68 Cal.App.3d 457, 465, 137 Cal.Rptr. 348;  In re Marriage of Ciganovich (1976) 61 Cal.App.3d 289, 293–295, 132 Cal.Rptr. 261;  McDowell v. Orsini (1976) 54 Cal.App.3d 951, 963–968, 127 Cal.Rptr. 285.)

In 1980, the California Supreme Court issued its only decision discussing this issue to date.   In Moffat v. Moffat (1980) 27 Cal.3d 645, 165 Cal.Rptr. 877, 612 P.2d 967, the court ruled that in such cases, the “child's need for sustenance must be the paramount consideration.”  (Id., at p. 651, 165 Cal.Rptr. 877, 612 P.2d 967.)   The court based its ruling on Code of Civil Procedure section 1694, holding that the intent of this provision was to clarify that the Revised Uniform Reciprocal Enforcement of Support Act provides “no forum for litigating disputes over interference with custody and visitation rights, ․” (Id., at pp. 651–652, 165 Cal.Rptr. 877, 612 P.2d 967.)

Moffat cited In re Marriage of Ciganovich, supra, 61 Cal.App.3d 289, 132 Cal.Rptr. 261, with approval.  (See Moffat v. Moffat, supra, 27 Cal.3d at pp. 651–652, 165 Cal.Rptr. 877, 612 P.2d 967.)   As Ciganovich had done, Moffat noted that the noncustodial parent whose visitation rights are being frustrated typically has remedies other than to withhold child support.   (Moffat, at pp. 651–652, 165 Cal.Rptr. 877, 612 P.2d 967.)   Such a parent may seek enforcement of the judgment order or decree in the rendering court (Civ.Code, § 4380), at which time the court may impose sanctions.   These include holding the custodial parent in contempt, terminating or reducing spousal support, and requiring a bond to assure compliance with the visitation order.   The court may also award a change of custody or otherwise modify the custody and support provisions of the original decree.  (Civ.Code, §§ 4603, 4700;  Moffat v. Moffat, supra, 27 Cal.3d at p. 652, 165 Cal.Rptr. 877, 612 P.2d 967.)

After Moffat, the Legislature in 1980 enacted Civil Code section 4382 to further clarify that visitation and child support are separate rights with separate remedies.   This statute provides that the “enforcement of a duty of support owed by a noncustodial parent for the support of a minor child shall not be affected by a failure or refusal by the custodial parent to implement any rights as to ․ visitation granted by a court to the noncustodial parent.”  (Emphasis added.)   After Moffat and the enactment of Civil Code section 4382, most appellate courts have refused to estop a custodial parent from collecting child support arrearages even when that parent has interfered with the noncustodial parent's visitation rights.  (See In re Marriage of Kelley (1986) 186 Cal.App.3d 613, 615–619, 231 Cal.Rptr. 6;  Camacho v. Camacho (1985) 173 Cal.App.3d 214, 218–220, 218 Cal.Rptr. 810;  In re Marriage of Ryall (1984) 154 Cal.App.3d 743, 747–754, 201 Cal.Rptr. 504;  Carr v. Marshman (1983) 147 Cal.App.3d 1117, 1119–1124, 195 Cal.Rptr. 603;  In re Marriage of Anderson (1981) 125 Cal.App.3d 553, 559–562, 178 Cal.Rptr. 117;  but see Creed v. Schultz (1983) 148 Cal.App.3d 733, 741–742, 196 Cal.Rptr. 252 [applying Ohio law];  In re Marriage of Daves, supra, 136 Cal.App.3d at pp. 9–11, 185 Cal.Rptr. 770 [no discussion of Moffat, statutes].)

In Solberg v. Wenker, supra, 163 Cal.App.3d 475, 209 Cal.Rptr. 545, the case on which the lower court relied, the appellate court attempted to reconcile the two lines of cases—those that post-dated the statutes and those that predated them.  (At pp. 479–481, 209 Cal.Rptr. 545.)   The Solberg court distinguished between mere interference, which the statutes provide does not constitute the basis of estoppel, and concealment, which was found to be outside the meaning of the statutes and which thus allowed estoppel as an equitable defense to child support arrearages.   In support of this conclusion, Solberg relies on suspect authority—cases that predate the statutes and the Supreme Court's decision in Moffat, as well as cases that do not discuss these relevant authorities.  (Id., at p. 480, 209 Cal.Rptr. 545;  see In re Marriage of Daves, supra, 136 Cal.App.3d at p. 10, 185 Cal.Rptr. 770;  Szamocki v. Szamocki, supra, 47 Cal.App.3d at pp. 818–820, 121 Cal.Rptr. 231;  see also Alferitz v. Borgwardt (1899) 126 Cal. 201, 207–209, 58 P. 460 [case decided in ignorance of statute is not precedent].)   After reviewing Solberg in the context of these statutes and the Moffat decision, we find its interference-concealment distinction to be contrary to established law and we decline to follow it.

The authorities that bind us hold that enforcement of a child support obligation must not be affected by “any interference ” with visitation rights.  (Code Civ.Proc., § 1694.)   The enforcement of this duty “shall not be affected by a [custodial parent's] failure or refusal ․ to implement [visitation] rights.”  (Civ.Code, § 4382, emphasis added.)   In such cases, the child's need for sustenance is “paramount.”  (See Moffat v. Moffat, supra, 27 Cal.3d at p. 651, 165 Cal.Rptr. 877, 612 P.2d 967.)   The Legislature's clear statement of the law is unconditional, and cannot be interpreted to provide the sort of exception Solberg created.  (See Lass v. Eliassen (1928) 94 Cal.App. 175, 179, 270 P. 745 [equity will not intrude into matters covered by positive statute or aid in circumventing legislative pronouncements];  Katsivalis v. Serrano Reconveyance Co. (1977) 70 Cal.App.3d 200, 213, 138 Cal.Rptr. 620;  see also 7 Witkin, Summary of Cal.Law (8th ed. 1974) Equity, § 3, pp. 5230–5231.)   The Supreme Court has held that the Legislature intended to separate support and visitation rights—that a custodial parent's misconduct cannot estop that parent from asserting a child's support rights.  (Moffat v. Moffat, supra, 27 Cal.3d at p. 651, 165 Cal.Rptr. 877, 612 P.2d 967.)   Regardless of whether the custodial parent actually conceals the children from the noncustodial parent or merely interferes with their visitation, these authorities apply with equal force.   Accordingly, we relieve the trial court of its obligation to follow Solberg.   While we do not condone the conduct of Linda and her mother in depriving Steven and the children of their right to continue to enjoy the parent-child relationship, we find that, as with interference with visitation rights, concealment does not constitute a defense to a child support action.

The order relieving respondent Steven Leeper of his obligation to pay child support is reversed.

As my authorship of the majority opinion implies, I agree that Moffat and the statutes compel the conclusion that Solberg v. Wenker, (1985) 163 Cal.App.3d 475, 209 Cal.Rptr. 545, is incorrect.   I write separately to note that, although the result in this case does not trouble me, I can envision a case in which this rule may create harsh results for conscientious noncustodial parents.   However, the Supreme Court and the Legislature appear to have spoken, and it is not for appellate courts to practice judicial activism in order to avoid decisions that may seem unfair.

CHANNELL, Associate Justice.

ANDERSON, P.J., and POCHÉ, J., concur.