IN RE: the MARRIAGE OF OLGA E. and Guadalupe R. Padilla. (1994)

I. INTRODUCTION

In In re Marriage of Damico (1994) 7 Cal.4th 673, 29 Cal.Rptr.2d 787, 872 P.2d 126, our Supreme Court held that a custodial parent's active concealment of a child from the noncustodial parent until the child becomes an adult may estop the custodial parent from seeking payment of child support arrearages that accumulated during the period of concealment.   In the present case we conclude that the same rule of estoppel applies when the concealment ends while a child is still a minor and that it applies to a county, as assignee of the custodial parent, seeking to recover arrearages that accumulated during the period of concealment and before the assignment.

II. BACKGROUND

The marriage of Guadalupe R. Padilla and Olga E. Padilla ¹ was dissolved in 1977.   Olga received custody of their two children, born in 1973 and 1975, and Guadalupe was ordered to pay monthly child support in the sum of $150 per child.

According to Guadalupe, he visited the children frequently and made support payments until March 1981, when Olga took the children to Mexico and concealed them until 1991 despite his continuing efforts to find them (which included several trips to Mexico, contact with various governmental authorities, placement of a public notice on a Mexican television network, and regular contact with Olga's former employer).   Guadalupe's location was certainly not a cause for any loss of contact, since he has resided in the same home and worked for the same employer since at least 1979.

At some point Olga became a resident of Contra Costa County and began receiving public assistance, assigning to the county her rights to unpaid and accrued child support.  (Welf. & Inst.Code, § 11477, subd. (a).)  On November 5, 1990, at the request of the Contra Costa County District Attorney, the Alameda County Superior Court issued a writ of execution for child support arrearages.   According to Guadalupe, only after issuance of the writ was he finally able to locate the children and renew a relationship with them.   At that time, although one of the children was an adult, the other was still a minor.

Guadalupe sought an order restraining the district attorney from enforcing the writ.   In a memorandum of points and authorities, he argued that Olga, and hence the county, should be estopped from collecting child support payments that had accrued during the period the children were concealed and before Olga's assignment of rights to the county.   He conceded his obligation to pay arrearages that had accrued after the assignment and apparently has paid them.

There was a split of authority on this issue.   On the one hand, the court in In re Marriage of McLucas (1989) 210 Cal.App.3d 83, 87, 258 Cal.Rptr. 133, following Solberg v. Wenker (1985) 163 Cal.App.3d 475, 209 Cal.Rptr. 545, held that deliberate concealment of a child may create an estoppel to collect child support arrearages.²  The court in In re Marriage of Smith (1989) 209 Cal.App.3d 196, 202–204, 257 Cal.Rptr. 47, reached the same conclusion for an action by a county acting as a custodial parent's assignee to collect preassignment arrearages.   On the other hand, the court in In re Marriage of Tibbett (1990) 218 Cal.App.3d 1249, 1253–1254, 267 Cal.Rptr. 642, held that enforcement of a child support obligation cannot be affected by concealment.³

In a minute order dated June 2, 1992, the trial court acknowledged the split of authority, asserted that Tibbett was “better-reasoned,” and ruled that in determining the amount of arrearages at a hearing on July 9 thecourtwould not consider evidence of concealment.   On July 9, after the hearing on arrearages, the court rendered an order assessing arrearages in the sum of $31,549.54.

We reversed this order on September 1, 1993, choosing to follow the McLucas–Solberg–Smith line of cases.   The Supreme Court granted review on a “grant and hold basis” (Cal.Rules of Court, rule 29.2(c)) pending its decision in In re Marriage of Damico, supra, 7 Cal.4th 673, 29 Cal.Rptr.2d 787, 872 P.2d 126.   The Supreme Court has now retransferred the case to us with directions to reconsider the cause in light of Damico.

III. DISCUSSION

A. The Notice of Appeal

 On July 22, 1992, the trial court rendered a formal order restating the substance of the June 2 minute order precluding evidence of concealment.   Guadalupe's notice of appeal specifies the July 22 order.

 Guadalupe should have specified the July 9 order assessing arrearages.   He states in his opening brief that the July 22 order was an appealable order after the final judgment of dissolution (Code Civ. Proc., § 904.1, subd. (b)), but that is not the case, since the July 22 ruling on the concealment issue did not “affect the judgment or relate to it by enforcing it or staying its execution.”  (Olson v. Cory (1983) 35 Cal.3d 390, 400, 197 Cal.Rptr. 843, 673 P.2d 720.)   The July 9 order, as the order enforcing the judgment, is the proper subject of the appeal, upon which the nonappealable ruling on evidence of concealment is reviewable.  (Code Civ.Proc., § 906.)

However, because a notice of appeal is to be liberally construed in favor of its sufficiency (Cal.Rules of Court, rule 1(a)), we shall construe the notice of appeal as specifying the July 9 order.  (E.g., In re Jennifer V. (1988) 197 Cal.App.3d 1206, 1209, 243 Cal.Rptr. 441.)

B. Concealment

The split of authority on the effect of concealment was addressed by In re Marriage of Damico, supra, 7 Cal.4th 673, 29 Cal.Rptr.2d 787, 872 P.2d 126.   The Supreme Court held that “a custodial parent who actively conceals him- or herself and the child from the noncustodial parent until the child reaches the age of majority, despite reasonably diligent efforts by the noncustodial parent to locate them, is estopped from later collecting child support arrearages for the time of concealment.”  (Id. at p. 685, 29 Cal.Rptr.2d 787, 872 P.2d 126.)

The court in Damico said, however, that because that case involved concealment until the child reached the age of majority, “we cannot, and do not, express an opinion on the rule when the concealment ends while the child is still a minor and might yet benefit from payment of the arrearages.”   (Ibid.)  Here, although one child was still a minor when the concealment ended, they both are now adults;  thus the Supreme Court's implied requirement of determining whether the payment of all or any arrearages would benefit a minor child is now no longer applicable.   The Damico court also said that because the case did not involve public assistance payments or an assignment of support rights to a county or other governmental entity, “we therefore do not decide any questions related to those circumstances.”  (Ibid.)

 The present appeal implicates both of these undecided points, since one child was still a minor when the alleged concealment ended, and the county, as the assignee of the custodial parent, sought a writ of execution for child support arrearages accruing since April 1981.   Guadalupe, by paying the arrearages accruing after the assignment to the county, has waived his right to claim an estoppel as to those arrearages.⁴  However, he seeks to avoid payment of preassignment arrearages which accrued during the period of alleged concealment.

 In addressing these issues, we are guided by the express rationale of Damico:  “In finding an estoppel defense under these facts, we rely on the unfairness of enforcing a judgment against a person who had no clear way of paying the monthly obligation because the custodial parent had gone into hiding.”  (Id. at p. 683, 29 Cal.Rptr.2d 787, 872 P.2d 126.)   The focus of this equitable consideration is on the noncustodial parent for whom concealment makes payment impossible.  (Ibid.)  If it is unfair to the noncustodial parent to enforce the judgment on the custodial parent's behalf after the child is an adult, it is likewise unfair to the noncustodial parent to enforce the judgment on an assignee county's behalf while the child is still a minor.

The Attorney General asserts statements in two decisions—State of Washington Ex. Rel. Burton v. Leyser (1987) 196 Cal.App.3d 451, 457–458, 241 Cal.Rptr. 812, and In re Marriage of Kelley (1986) 186 Cal.App.3d 613, 620–621, 231 Cal.Rptr. 6—to the effect that estoppel because of concealment is not a defense to a public agency's action to recover assigned support arrearages because it would nullify a strong policy of protecting the public fisc.   But those statements are dicta.   In Leyser, the public agency was litigating only on the custodial parent's behalf;  the court said that “[q]uite different considerations”—i.e., preclusion of estoppel—“would be present if a public agency had provided support for the benefit of the children and was seeking reimbursement.”  (196 Cal.App.3d at p. 457, 241 Cal.Rptr. 812.)   In Kelley, the court found no preassignment concealment, but commented that even if there had been such concealment the county would not be estopped.   (186 Cal.App.3d at pp. 619–620, 231 Cal.Rptr. 6.)   In light of the Supreme Court's focus in Damico on fairness to the noncustodial parent, the dicta in Leyser and Kelley lose any force they might otherwise have had.   Moreover, the policy of protecting the public fisc is less implicated where, as here, the arrearages at issue were preassignment, and thus the county is not seeking reimbursement for payments actually made.

 Also, it simply makes no sense that a county assignee could have greater rights than its assignor and be free of an estoppel binding the assignor.   We agree with In re Marriage of Smith, supra, 209 Cal.App.3d at pages 203–204, 257 Cal.Rptr. 47, which concluded that because an assignee stands in the shoes of the assignor and succeeds to the assignor's rights subject to any defenses then available against the assignor, a county assignee of child support payments is subject to an estoppel defense against the assignor as to preassignment arrearages.  “In short, assignment of a sow's ear to the county cannot transform it into a silk purse.   If the evidence shows that [the assignor custodial parent] is estopped from receiving or has waived her rights to child support accrued prior to her assignment to the county, that waiver or estoppel would also bar the county.”  (Ibid.)

 Finally, we note that the decision whether estoppel may be raised as a defense to the payment of child support arrearages is an equitable one, implicating several policy considerations.   After all, family law proceedings are equitable in nature to assure fairness.   Equitable defenses must be available to assure an equitable result.   The issuance of a writ of execution itself is subject to equitable considerations.  (See Fam.Law Code, § 290;   In re Marriage of Trainotti (1989) 212 Cal.App.3d 1072, 1074–1075, 261 Cal.Rptr. 36.)   Those considerations apply with equal force whether the estoppel is asserted against the custodial parent or an assignee county.

 The law strongly discourages self-help, especially as it relates to children.   If there is a dispute between parents or conflict over compliance with a court order, a resolution should be obtained by enlisting the assistance of the court through an appropriate motion.   As our Supreme Court has pointed out, remedies for interference with rights of visitation are provided by statute, including enforcement by contempt, terminating or reducing spousal support, requiring a bond to assure visitation, and a change of custody.   (Moffat v. Moffat (1980) 27 Cal.3d 645, 652, 165 Cal.Rptr. 877, 612 P.2d 967.)   Unfortunately, where the custodial parent conceals his or her whereabouts and that of the child, those remedies are totally illusory because they are unavailable.  (In re Marriage of Damico, supra, 7 Cal.4th at p. 680, 29 Cal.Rptr.2d 787, 872 P.2d 126.)   Indeed, the other parent may spend significant sums of money to try to find the child, all for naught.

It is the concealing parent whose wrongful use of self-help creates the arrearages, since the other parent has no ability to know where the money for the support of the child should be sent.   No matter what the motivation for concealment, a parent concealing a child is wrongfully depriving the child of his or her own rights, including the right to a higher standard of living based upon the payment of child support and, even more importantly, the right to maintain a meaningful relationship with the other parent in accordance with the provisions of Family Code section 3020, which “declares that it is the public policy of this state to assure minor children frequent and continuing contact with both parents after the parents have separated․”  Deprivation of this latter right not only does harm to the parent who loses any chance to have a meaningful relationship with the concealed child, but may cause serious and permanent emotional harm to the child.   Children, almost universally, receive beneficial contributions to their growth and development from each parent, which the other parent cannot provide.

If there is good reason to preclude contact between a child and a parent, or to limit that contact to supervised contact, a motion to the court can accomplish this.   Abducting the child is not the solution and, indeed, isacriminal act prohibited by Penal Code sections 277, 278 or 278.5.⁵  It certainly is contrary to public policy to reward a criminal wrongdoer and punish an innocent victim by requiring payment of child support to the wrongdoer for the period of time he or she is committing a criminal act against the victim.

Even if the concealing parent is not charged with a crime, or could not be convicted of criminal conduct, it is not good policy to reward that parent, or by extension an assignee, for concealment of the child.   If the parent concealing the child, or the assignee, seeks arrearages after the child has reached the age of majority, the arrearages are payable to the parent or assignee, not the child, and can no longer be applied for the support of the child during his or her minority.   This would be rewarding the wrongdoer or assignee with a windfall at the expense of the victim parent, with absolutely no benefit to the child.   Indeed, absent estoppel, the concealing parent or assignee could recover the arrearages even if the child had died.

Another consideration—the strong legal and moral duty to support one's child, and the benefit that might inure to a minor child from the payment of arrearages (see In re Marriage of Damico, supra, 7 Cal.4th at p. 685, 29 Cal.Rptr.2d 787, 872 P.2d 126)—does not favor the county here.   Guadalupe has conceded his obligation to pay postassignment arrearages, and because the Padilla children have now both reached the age of majority, they would receive no tangible benefit from the county's collection of preassignment arrearages.   (In re Marriage of Smith, supra, 209 Cal.App.3d at p. 202, 257 Cal.Rptr. 47.)   We recognize there will be situations where a county's collection of arrearages for a child who is still a minor will exceed the amount of reimbursement to which the county is entitled (see Welf. & Inst.Code, § 11350, subd. (a)), so that the excess may inure to the benefit to the child.   In such a case the equitable consideration of benefit to the child by the payment of some or all of the arrearage might well prevail over the consideration of fairness to the noncustodial parent.   That is not, however, the situation here.   The children are now adults, and the county concedes the arrearages do not exceed the aid payments.⁶

We conclude the trial court erred in refusing to consider evidence of deliberate concealment for purposes of estoppel as to preassignment arrearages.

IV. DISPOSITION

The order of July 9, 1992, is reversed and the cause is remanded with directions to the superior court to consider evidence on the issue of preassignment concealment and to redetermine the amount of child support arrearages owed to the county, if any, in accordance with the views expressed in this opinion.   Guadalupe shall recover his costs on appeal.

FOOTNOTES

1.   For ease of reference, we will refer to the parties by their first names, Guadalupe and Olga.  (See In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475–476, 274 Cal.Rptr. 911, fn. 1.)

2.   See also In re Marriage of Daves (1982) 136 Cal.App.3d 7, 185 Cal.Rptr. 770, Szamocki v. Szamocki (1975) 47 Cal.App.3d 812, 121 Cal.Rptr. 231 and Kaminski v. Kaminski (1970) 8 Cal.App.3d 563, 87 Cal.Rptr. 453.

3.   See also In re Marriage of King (1993) 16 Cal.App.4th 1250, 20 Cal.Rptr.2d 486, Puig v. Ryberg (1991) 230 Cal.App.3d 141, 283 Cal.Rptr. 604, In re Marriage of Kelley (1986) 186 Cal.App.3d 613, 231 Cal.Rptr. 6 and In re Marriage of Anderson (1981) 125 Cal.App.3d 553, 178 Cal.Rptr. 117.

4.   For this reason the issue of whether an estoppel defense is available to the victimized parent for the period between the date of an assignment to the county and the date the concealment ends is not before us in this appeal.   There does not, however, appear to be any reason why our holding in this case should not also be applicable to this time period, since it is the wrongful conduct of concealment by a parent which makes estoppel available as a defense to the payment of child support.   Payment of the arrearage accrued during that timeframe might all go to the county and not be of any benefit to the child.   Indeed, the county and the district attorney, by virtue of the confidentiality provisions of Welfare and Institutions Code sections 10850 and 11478.1, may be aiding in the continued concealment of the child by being statutorily precluded from disclosing information in their records.The district attorney's office is in a peculiar position in this kind of a case.   As we discuss later, a parent who abducts and conceals a child is guilty of criminal conduct prohibited by Penal Code sections 277, 278, or 278.5, and is subject to prosecution by the district attorney.   At the same time, the district attorney, pursuant to Family Code sections 3130 and 3131, is designated as the office to which a parent in Guadalupe's position should go for assistance in locating the absent parent and child.   The same office is charged with the responsibility of enforcing the child support order against the parent whose child has been concealed.   It would stand to reason that a parent in Guadalupe's position would feel it unlikely that he would get any help in locating his child from the very office enforcing a child support order against him, especially when that office may possess information which confidentiality restrictions preclude giving to him.   In any event, since it is alleged that Olga was concealing the children in Mexico, the district attorney's use of the parent locator service would not be of any benefit in finding a child concealed outside the United States.

5.   Federal law now makes it a felony to remove or retain a child under 16 outside of the United States with the intent to obstruct the lawful exercise of parental rights, including visitation.  (See 18 U.S.C., § 1204.)

6.   The record before us contains no information about Guadalupe's present income, assets, health or marital status, or whether he has other minor children he is currently supporting.   Thus it is impossible to know the extent of the hardship he faces if required to pay the $31,549.54, plus interest, that accrued while his children were purportedly concealed from him.   Certainly there is nothing in the record to indicate he possesses any substantial wealth.He appears to be a middle income wage earner.   If so, like most other middle income Californians, he probably has difficulty in meeting his living expenses every month.   This presents an additional equitable consideration which the record before us does not allow us to consider.   For most middle income Californians the imposition of an obligation of this magnitude would put them into a financial hole from which they could never escape.   In this case the children are now adults.   Thus, Guadalupe would not really be paying for the support of minor children but, in effect, if his claim of concealment is true, would be paying support for a wrongdoer who made him the victim of her criminal acts.   It would be inequitable, having already been made a victim by being deprived of the whereabouts of his children for ten years, for a court of equity to again victimize him by requiring him to pay arrearages that accumulated during the period of Olga's misconduct.

KING, Associate Justice.

PETERSON, P.J., and HANING, J., concur.