IN RE: the Marriage of Mary and Ronald DAMICO. (1993)

On January 15, 1991, respondent, through the Family Support Division of the Marin County District Attorney's Office, filed a Statement for Registration of Foreign Support Order which had been entered in San Francisco Superior Court and modified thereafter.   The order which respondent sought to enforce was entered on June 23, 1980, and determined that appellant owed child support arrearages from May 1, 1959 through September 1, 1978 in the total amount of $12,948.50, plus interest “determined to be $10,264.22.”

Appellant filed opposition on May 6, 1991, in which he moved to Vacate Registration of Foreign Support Order and Vacate Default.   He also asked that respondent “be enjoined from any further collection efforts.”   At a hearing on August 16, 1991, to determine the amount of arrearages, if any, owed by appellant, he made the following offer of proof of concealment of the child by respondent as a defense to her action for enforcement of arrearages.

Appellant and respondent were “married in 1958 and separated less than a year later.”   During the marriage, a son, Ronald, was born to them on September 22, 1958.   A judgment of divorce was entered in May of 1960 which ordered appellant to pay child support for the parties' minor child.   Appellant paid child support for “less than a year,” whereupon, he claims, during a visit in 1960 to respondent and the child, respondent's brother assaulted him with a knife, forcing him “to flee the area.”   Respondent then stated to appellant that she did not want him to “see the child ever again.”   Respondent also refused to accept appellant's telephone calls or allow him to visit her or the child.   Soon thereafter, according to appellant's declaration, respondent “dropped out of sight․”  Appellant attempted without success to locate respondent by contacting “school districts,” looking in the telephone directory, and visiting respondent's “old job” and “old address.”

Between 1960 and 1979, appellant claims he had “no way of contacting or paying support” to respondent.   In July of 1963, respondent, after her remarriage, filed a petition to change the last name of the child to Austin.   She maintains that she attempted to notify appellant of the name change, but could not locate him.   Appellant insists that between 1963 and 1979 he was never contacted by respondent or anyone on her behalf, although he “maintained” permanent residency in the “Palo Alto/Menlo Park area”, as did his parents and maintained a business advertisement in the yellow pages of the telephone book which included his photograph.   Appellant was ignorant of the “name change” or whereabouts of the child and would have met his child support obligations had he not been excluded from the child's life by respondent's “calculated plan” of concealment.

After appellant had “given up all hope of ever contacting” his son, in 1979 he was “shocked” to be served with “an Application for Child Support Arrearages.”   He hired counsel to represent him in the action for arrearages instituted by respondent, and “moved to Arizona believing ․ this matter had been taken care of by that attorney.”   Only later did appellant learn that his attorney did not make an appearance on his behalf “and that a judgment had [been] entered.”

The trial court ruled that appellant's proffered “concealment” evidence was not relevant to the issue of arrearages, and refused to consider appellant's “concealment” defense.   Appellant's claim that the judgment against him for arrearages was unenforceable due to respondent's delay and lack of diligence was also rejected.   On January 17, 1992, the trial court issued a statement of decision in which appellant was ordered to pay the entire amount of arrearages which had accumulated during the child's minority, plus interest to the present date.

Appellant contends that the trial court erred by excluding as irrelevant his concealment evidence.   He maintains that “active concealment” of a child precludes a claim for arrearages on an estoppel or waiver theory.¹  As appellant acknowledges, case authority on the issue is split and somewhat confusing, despite applicable statutory authority.

Code of Civil Procedure section 1694 (hereafter § 1694) provided that the “determination or enforcement of a duty of support owed to one obligee is unaffected by any interference by another obligee with rights of custody or visitation granted by a court.”   In Moffat v. Moffat (1980) 27 Cal.3d 645, 165 Cal.Rptr. 877, 612 P.2d 967 (hereafter Moffat ), our high court declared that section 1694 evinces a legislative determination that “the child's need for sustenance must be a paramount consideration” and “bars the assertion of interference with visitation rights as a defense in a RURESA proceeding in which the duty of support is being determined.”  (Id. at pp. 651, 659, 165 Cal.Rptr. 877, 612 P.2d 967;  see also In re Marriage of Tibbett (1990) 218 Cal.App.3d 1249, 1252, 267 Cal.Rptr. 642.)   Following the decision in Moffat, Civil Code section 4382 (hereafter § 4382) was enacted;  it states:  “The existence or 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 custody or visitation granted by a court to the noncustodial parent.”   “Section 4382 ․ expressly provides the duty ․ owed by a noncustodial parent for the support of a minor child is unaffected by the custodial parent's refusal to permit the noncustodial parent to exercise his or her visitation and/or custody rights.”  (Puig v. Ryberg (1991) 230 Cal.App.3d 141, 144, 283 Cal.Rptr. 604.)   The purpose of section 4382 was “to further clarify that visitation and child support are separate rights with separate remedies.”   (In re Marriage of Tibbett, supra, 218 Cal.App.3d at p. 1253, 267 Cal.Rptr. 642.) ²

 The directive of sections 1694 and 4382 is clear:  enforcement of a child support obligation is not affected by the custodial parent's “interference with” or “refusal ․ to implement” the visitation rights of the noncustodial parent.  (In re Marriage of Tibbett, supra, 218 Cal.App.3d at p. 1253, 267 Cal.Rptr. 642.)   Thus, the prevailing view is that under the governing statutes the custodial parent cannot be estopped from collecting child support arrearages even upon a showing of that parent's interference with visitation rights.  (Ibid;  see also Puig v. Ryberg, supra, 230 Cal.App.3d at p. 144, 283 Cal.Rptr. 604;  In re Marriage of Gregory (1991) 230 Cal.App.3d 112, 115, 281 Cal.Rptr. 188;  In re Marriage of Kelley (1986) 186 Cal.App.3d 613, 618–619, 231 Cal.Rptr. 6;  in rE marriage OF ryall (1984) 154 caL.app.3d 743, 753–754, 201 caL.rptr. 504;  Carr v. Marshman (1983) 147 Cal.App.3d 1117, 1120–1121, 195 Cal.Rptr. 603;  In re Marriage of Anderson (1981) 125 Cal.App.3d 553, 562, 178 Cal.Rptr. 117.)

 A distinction has been recognized, however, between mere interference with visitation rights by the custodial parent, which the controlling statutes expressly foreclose as a defense to enforcement of a child support order, and active concealment of the child, which falls outside the purview of sections 1694 and 4382.  (In re Marriage of Smith (1989) 209 Cal.App.3d 196, 201–202, 257 Cal.Rptr. 47;  State of Washington ex rel. Burton v. Leyser (1987) 196 Cal.App.3d 451, 457, 241 Cal.Rptr. 812 (hereafter Leyser );  In re Marriage of Kelley, supra, 186 Cal.App.3d 613, 618–619, 231 Cal.Rptr. 6;  Solberg v. Wenker (1985) 163 Cal.App.3d 475, 478, 209 Cal.Rptr. 545;  In re Marriage of Daves (1982) 136 Cal.App.3d 7, 10, 185 Cal.Rptr. 770.)   We are persuaded that the distinction is a valid one, based upon the statutory language and rationale underlying the legislation.

Sections 1694 and 4382 specifically provide that the child support obligation is not extinguished by the custodial parents “interference” with or “refusal ․ to implement” visitation granted by the court, conduct which we do not equate with deliberate “sabotage” of visitation rights by concealment of the child.  (In re Marriage of Smith, supra, 209 Cal.App.3d at p. 201, 257 Cal.Rptr. 47;  Solberg v. Wenker, supra, 163 Cal.App.3d at p. 478, 209 Cal.Rptr. 545.)   Thus, we find nothing in the language of the statutes which expressly prohibits an estoppel defense to an action for collection of child support arrearages based upon active concealment of the child.   Had the Legislature intended to grant an exemption from equitable defenses to conduct which so subverts the parent-child relationship, we believe the terms “interference” with and “refusal ․ to implement” visitation rights would have been replaced with much more encompassing language.

We are also convinced that the primary objective of the statutes—that is, the child's sustenance and welfare—cannot be served where the custodial parent seeks an award of arrearages after the child has been concealed until reaching the age of majority.³  (In re Marriage of Smith, supra, 209 Cal.App.3d at pp. 202–203, 257 Cal.Rptr. 47;  Leyser, supra, 196 Cal.App.3d at p. 458, 241 Cal.Rptr. 812.)   In such a case, reimbursement to the custodial parent will not cognizably advance the child's welfare.  (Ibid.)  We see no reason to reward a custodial parent who has concealed the whereabouts of a child, and thereby denied the values inherent in a congenial parent-child relationship, with a belated award of support arrearages which will be of no tangible benefit to the child.  (Moffat, supra, 27 Cal.3d at p. 658, 165 Cal.Rptr. 877, 612 P.2d 967.)   The welfare of a child “transcends material considerations․  Visitation rights are a two-way street:  although technically awarded by a court to a parent, the rights belong equally to the children.   Thus the Legislature and our courts alike have declared an abiding parental relationship to be in the best interests of the child.   [Citations.]”  (Ibid;  see also In re Marriage of Smith, supra, 209 Cal.App.3d at pp. 202–203, 257 Cal.Rptr. 47;  Leyser, supra, 196 Cal.App.3d at p. 457, 241 Cal.Rptr. 812.)   Without a clear and convincing directive from the Legislature, we decline to permit a custodial parent to undermine the parent-child relationship by active concealment of the child—which we view as an implicit election to raise the child without financial assistance from the noncustodial parent—with no disruption of the corollary right to reimbursement for child support arrearages.   And finally, while a noncustodial parent who has suffered mere interference with visitation rights has several feasible alternative remedies—i.e., an order of contempt, an order terminating or reducing spousal support, an order changing custody, or a bond to assure compliance with visitation orders—the case is otherwise where the custodial spouse has engaged in purposeful concealment.   In such circumstances, the noncustodial spouse has no practical means of employing these remedies and may have no recourse other than to claim concealment as a defense to collection of child support arrearages.  (Id. at p. 459, 241 Cal.Rptr. 812;  Solberg v. Wenker, supra, 163 Cal.App.3d at p. 480, 209 Cal.Rptr. 545.)

 Appellant offered evidence that respondent may have deliberately concealed both herself and the child from him not only for the purpose of interfering with his visitation rights, but also in order to practically extinguish the father-child relationship.   He was unaware of the whereabouts of respondent and the child from 1960 until at least 1979.   Thereafter, respondent waited until 1991 to renew her claim for arrearages when the child had long since passed the age of majority.   If credited, appellant's evidence amounts to willful and active concealment, rather than mere interference with visitation rights.  (Cf. In re Marriage of Kelley, supra, 186 Cal.App.3d at p. 619, 231 Cal.Rptr. 6.)   We therefore conclude that the trial court erred by refusing to admit or consider appellant's evidence of concealment in support of his defense to respondent's request for payment of arrearages.  (In re Marriage of Smith, supra, 209 Cal.App.3d at p. 203, 257 Cal.Rptr. 47;  Leyser, supra, 196 Cal.App.3d at p. 459–460, 241 Cal.Rptr. 812;  Solberg v. Wenker, supra, 163 Cal.App.3d at p. 480, 209 Cal.Rptr. 545;  In re Marriage of Daves, supra, 136 Cal.App.3d at p. 10, 185 Cal.Rptr. 770;  Szamocki v. Szamocki (1975) 47 Cal.App.3d 812, at pp. 819–820, 121 Cal.Rptr. 231.) ⁴

 We turn to appellant's contention that respondent is barred by laches and her lack of diligence from recovering an award of arrearages.   He complains that respondent's failure to execute upon the judgment for payment of child support within the statutory period bars the present action for arrearages.

Although a money judgment is generally enforceable only until “10 years after the date of entry” (Code Civ.Proc., § 683.020;  Green v. Zissis (1992) 5 Cal.App.4th 1219, 1222, 7 Cal.Rptr.2d 406), under Civil Code section 4383, subdivision (a), a judgment for payment of child support “may be enforced by a writ of execution without prior court approval until five years after the child reaches the age of majority and, thereafter, for amounts that are not more than 10 years overdue on the date of application therefor.”   The “clear and unambiguous” language of section 4383 thus provides “for two situations in which a writ of execution to enforce child or family support may be obtained without prior court approval.   Such a writ may be obtained ‘until five years after the child reaches the age of majority’;  after that time, such writ may be obtained ‘for amounts that are not more than 10 years overdue on the date of the application.’ ”  (In re Marriage of Wight (1989) 215 Cal.App.3d 1590, 1595, 264 Cal.Rptr. 508.)  “Under section 4383, enforcement of a judgment for all accrued child support is available until the child reaches age 24.   (Ibid.)  Only after the child reaches that age does the 10–year limitations period apply.  [Citation.]”  (Puig v. Ryberg, supra, 230 Cal.App.3d at p. 145, 283 Cal.Rptr. 604.) ⁵

The judgment of dissolution by which respondent was awarded child support was issued in May of 1960;  the child reached the age of majority on September 22, 1979.⁶  Thus, under section 4383 respondent had until five years later, September 22, 1984, to execute upon the judgment in full and even thereafter for amounts “not more than 10 years overdue․”  The present action was not commenced until January of 1991.

Respondent contends that she effectively renewed the judgment in June of 1980, and by doing so extended “the period of enforceability” under Code of Civil Procedure sections 683.110, 683.120 and 683.130.⁷  It does not appear to us from the record that the order determining arrearages obtained by appellant in June of 1980 was a “renewal” in accordance with present statutory procedures—which did not then even exist.   Nevertheless, that judgment for arrearages which respondent seeks to enforce was itself filed within the requisite period for enforcement of the original judgment awarding respondent child support, and then became a lump-sum money judgment subject to the statutory time limits for enforcement.   Within 10 years thereafter, appellant timely filed an application for renewal of the judgment on April 18, 1990.  (Code Civ.Proc., § 683.130.)   Accordingly, respondent complied with the statutory requirements for enforcement of the judgment and is not barred by laches or lack of diligence (Civ.Code, § 4384) ⁸ from seeking to execute upon that judgment.  (Di Corpo v. Di Corpo (1948) 33 Cal.2d 195, 201, 200 P.2d 529;  Leiden v. Hudson (1979) 95 Cal.App.3d 72, 75, 156 Cal.Rptr. 849.)

The judgment is reversed;  the case is remanded to the trial court for presentation of evidence on the issue of concealment and for further proceedings not inconsistent with the views expressed herein.⁹  Costs are awarded to appellant.

FOOTNOTES

1.   We reject respondent's claim that appellant waived his concealment defense by failing to raise it during the 1980 proceeding on her motion to determine arrearages.   In that proceeding, appellant apparently consulted an attorney, and settlement negotiations occurred.   Ultimately, appellant did not appear at the hearing on the motion and a judgment was entered against him by default.   The issue of concealment as a defense to appellant's obligation to pay arrearages was not actually litigated or resolved in any earlier proceedings.   In his opposition to respondent's request for enforcement of the arrearages order, appellant has at all times relied on the concealment defense.  (Cf. In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501, 257 Cal.Rptr. 397.)   Under the circumstances presented, we find that appellant has neither waived nor is precluded by collateral estoppel principles from asserting concealment of the child as a defense to respondent's claim for arrearages.  (Briggs v. Lawrence (1991) 230 Cal.App.3d 605, 611–612, 281 Cal.Rptr. 578;  Rohrbasser v. Lederer (1986) 179 Cal.App.3d 290, 300, 224 Cal.Rptr. 791;  Matthews v. Matthews (1977) 74 Cal.App.3d 683, 689, 141 Cal.Rptr. 634;  Golden v. City of Oakland (1975) 49 Cal.App.3d 284, 292, 122 Cal.Rptr. 400.)

2.   Section 1694 was enacted as section 1695 in 1970, and subsequently renumbered.  (See Stats.1970, ch. 1126, § 31, pp. 2002–2003.)  Section 4382 became effective on January 1, 1981.  (See Stats.1980, ch. 237, § 1, p. 480.)   In 1992, sections 1694 and 4382 were repealed, operative January 1, 1994.  (Stats.1992, ch. 162, §§ 3, 6;  see then Family Code, §§ 3556, 4845.)

3.   We realize that even if the child support obligation has terminated due to the child's attainment of majority, the statutes may still have the deterrent effect of inducing compliance with child support orders despite the custodial parent's interference with visitation rights.   Any deterrence value of the statutes is lost, however, where the custodial parent has concealed the child's whereabouts and the noncustodial parent has demonstrated attempts to locate the child.

4.   To the extent that In re Marriage of Tibbett, supra, 218 Cal.App.3d 1249, 1254, 267 Cal.Rptr. 642, stands for the proposition that even “concealment does not constitute a defense to a child support action,” we decline to follow it.   We observe that part of the demand in Tibbett was for current child support rather than arrearages, and find the evidence of concealment in that case less substantial than appellant's offer of proof in the instant case.

5.   Amended versions of section 4384.5 and Code of Civil Procedure section 683.130, which are not effective until January 1, 1994, will provide that a judgment for child support “is enforceable until paid in full,” without any time limit or renewal requirement.  (Stats.1992, ch. 718, §§ 3, 4, No. 5 Deering's Adv.Legis.Service, p. 2865.)

6.   At that time under California law the age of majority was 21 years old.

7.   Section 683.110 of the Code of Civil Procedure provides:  “(a) The period of enforceability of a money judgment or a judgment for possession or sale of property may be extended by renewal of the judgment as provided in this article.”Section 683.120 of the Code of Civil Procedure provides:  “(a) The judgment creditor may renew a judgment by filing an application for renewal of the judgment with the court in which the judgment was entered.  [¶] (b) Except as otherwise provided in this article, the filing of the application renews the judgment in the amount determined under Section 683.150 and extends the period of enforceability of the judgment as renewed for a period of 10 years from the date the application is filed.  [¶] (c) In the case of a money judgment payable in installments, for the purposes of enforcement and of any later renewal, the amount of the judgment as renewed shall be treated as a lump-sum money judgment entered on the date the application is filed.”Section 683.130 of the Code of Civil Procedure provides:  “(a) In the case of a lump-sum money judgment or a judgment for possession or sale of property, the application for renewal of the judgment may be filed at any time before the expiration of the 10–year period of enforceability provided by Section 683.020 or, if the judgment is a renewed judgment, at any time before the expiration of the 10–year period of enforceability of the renewed judgment provided by Section 683.120.  [¶] (b) Except as otherwise specified in subdivisions (c) and (d), in the case of a money judgment payable in installments, the application for renewal of the judgment may be filed:  (1) If the judgment has not previously been renewed, at any time as to past due amounts that at the time of filing are not barred by the expiration of the 10–year period of enforceability provided by Sections 683.020 and 683.030.  [¶] (2) If the judgment has previously been renewed, within the time specified by subdivision (a) as to the amount of the judgment as previously renewed and, as to any past due amounts that became due and payable after the previous renewal, at any time before the expiration of the 10–year period of enforceability provided by Sections 683.020 and 683.030.”

8.   Civil Code section 4384 states in relevant part:  “The lack of diligence for more than the period specified in Section 4383 in seeking enforcement of a judgment, order, or decree of the court made, entered, or enforceable pursuant to this part that requires the payment of money shall be considered by the court in determining whether to permit enforcement of the judgment, order, or decree under Section 4380.”

9.   We, of course, express no view on the credibility or sufficiency of appellant's evidence of concealment or respondent's evidence to the contrary;  that is a matter for the trial court to determine upon remand.

NEWSOM, Acting Presiding Justice.

STEIN and DOSSEE, JJ., concur.