IN RE: MARRIAGE OF Donna and Gerald COMER. (1994)

OPINION

I

Donna and Gerald Comer were divorced in 1985 in Arizona.   The default judgment awarded custody of the parties' two boys, born in 1980 and 1983, to Donna.   Reasonable visitation was defined as “[a]ny time [Gerald] can get out [to Arizona] or can afford to bring them out there” and included a restriction of “[n]o more than 2 weeks at any one time.”   Gerald was ordered to pay monthly child support of $350 for each child.

On February 8, 1993, the Orange County District Attorney's Office Family Support Division filed the underlying Code of Civil Procedure section 1650 Uniform Reciprocal Enforcement of Support Act (URESA) petition, alleging Gerald owed $29,300 in support arrearages.   The case was heard in August.   The court found the arrearages to be $7,700, representing money owed from September 1992 to August 1993.   The court concluded no support was due from March 1985 to September 1992 because during that time Donna concealed the children's whereabouts.   We affirm.

II

“The Courts of Appeal [have been] divided on the question to what extent, if any, concealment is a defense to the obligation to pay child support.”  (In re Marriage of Damico (1994) 7 Cal.4th 673, 675, 29 Cal.Rptr.2d 787, 872 P.2d 126.)   Recently, our Supreme Court settled the conflict, concluding active “concealment may estop the custodial parent from seeking payment of child support arrearages which accumulated during the period of concealment.”   (Id. at p. 676, 29 Cal.Rptr.2d 787, 872 P.2d 126.)

The Damico court acknowledged active “[c]oncealment of the custodial parent and child from the noncustodial parent until the child is an adult interferes in an extreme manner with visitation rights.”  (In re Marriage of Damico, supra, 7 Cal.4th at pp. 682–683, 29 Cal.Rptr.2d 787, 872 P.2d 126.)   But citing Family Code sections 3556 and 4845, the court concluded denial of visitation, in and of itself, was an inappropriate basis for estoppel.¹  (Id. at p. 683, 29 Cal.Rptr.2d 787, 872 P.2d 126.)

The court explained, however, active “concealment does much more.   It effectively precludes the noncustodial parent from invoking or benefitting from the remedies for interference ․ and precludes the very child support payments that the custodial parent later seeks to collect.   One cannot make child support payments to a person who cannot be located.   Concealment thus defeats the entire purpose of the order, which is to provide support to a third party, the child.   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.   It is unfair to let the parent hide during the term of the obligation usually a lengthy term and then reappear and demand payment of arrearages in full after he or she has defeated the purpose of the judgment.   If the Legislature had intended to make child support obligations unaffected by such concealment, i.e., by conduct making impossible the child support payments themselves, it could have and surely would have used more expansive language than it did.”  (In re Marriage of Damico, supra, 7 Cal.4th at p. 683, 29 Cal.Rptr.2d 787, 872 P.2d 126.)

The court held, “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 the concealment.   Because it is the inability to make the support payments that distinguishes concealment from mere interference, the concealment, to be a defense, must be of both the custodial parent and the child.”  (In re Marriage of Damico, supra, 7 Cal.4th at p. 685, 29 Cal.Rptr.2d 787, 872 P.2d 126.)

III

The Attorney General argues the evidence is insufficient to establish Donna's active concealment of herself and the children and fails to establish Gerald was diligent in his efforts to find them.   The record discloses otherwise.

In order for a noncustodial parent to rely on an estoppel defense he or she must act “with reasonable diligence ․ [and not] simply [give] up after encountering the first difficulty in finding the child․  [The custodial parent must] in fact conceal herself [or himself] and the child, thus preventing the payments․”  (In re Marriage of Damico, supra, 7 Cal.4th at p. 684, 29 Cal.Rptr.2d 787, 872 P.2d 126.)

The family was living in Florida when in 1985, Donna left, taking the children with her.   Shortly thereafter, Gerald was served with the divorce papers.

Gerald testified that from then until 1992, he knew only that Donna and the children were in Arizona.   He did not know where they were residing and no one would tell him.   He spoke with her parents who lived in Arizona.   And twice in 1984 and 1985, they allowed him to talk with the children who were visiting.   In 1986 or 1987 he travelled to Arizona to locate Donna and the children.   He talked to her once saying he was coming to her parents', and she responded, “I am taking the kids so you can't see them.”   She did just that.

Gerald continued trying to find where Donna worked and lived.   Neither her parents nor her sisters would tell him.   In fact, Donna had threatened her parents they would never see their grandchildren if her whereabouts became known.   In 1988, Gerald returned to Arizona, having arranged to spend the weekend with his in-laws and his children.   Donna found out and he again was unable to locate the children.

Gerald testified he was always looking for his family.   He considered hiring a private investigator, but decided he could not afford it.   He did not know how to reach them;  and during this period of time, Donna remarried and changed her name.

Then in 1992, Gerald's older son called him.   At last, contact was made.   Gerald's immediate response was to commence his child support payments.   Donna acted fast also:  She filed the underlying petition seeking arrearages.

 Whether Donna actively concealed herself and the children and Gerald acted with reasonable diligence are factual questions for the trial court to decide.  (In re Marriage of Damico, supra, 7 Cal.4th at p. 684, 29 Cal.Rptr.2d 787, 872 P.2d 126.)   The trial court concluded yes and the record amply supports its findings.   These facts speak for themselves.   Gerald wanted to support his sons;  he just did not know where to mail the checks.   Conversely, Donna expected support only if she was forced to disclose her whereabouts.   As our Supreme Court noted, a custodial parent who prevents the receipt of child support payments by concealing the location to which they should be sent, cannot thereafter claim the noncustodial parent's location efforts were insufficient.  (Ibid.)

IV

 The Damico court did not decide whether its holding applies when “public assistance payments or the assignment of child support rights to a county or other government entity” are involved.  (In re Marriage of Damico, supra, 7 Cal.4th at p. 685, 29 Cal.Rptr.2d 787, 872 P.2d 126.)   We see no reason for the rule to be different when public assistance has been advanced or arrearage rights have been assigned to a government agency.²  Before we explain, an observation is in order.

Not all URESA cases involve welfare reimbursements or government assignments;  many such procedures are filed to collect child support for an out-of-state custodial parent.   Our Supreme Court acknowledged this when it construed URESA and Family Law Act filings as identical for purposes of its determination.   (In re Marriage of Damico, supra, 7 Cal.4th at p. 678, 29 Cal.Rptr.2d 787, 872 P.2d 126.) ³

Three California courts have considered whether concealment is a valid defense when arrearages sought are for welfare reimbursement.  (In re Marriage of Smith (1989) 209 Cal.App.3d 196, 257 Cal.Rptr. 47;  State of Washington ex rel. Burton v. Leyser (1987) 196 Cal.App.3d 451, 241 Cal.Rptr. 812;  and In re Marriage of Kelley (1986) 186 Cal.App.3d 613, 231 Cal.Rptr. 6.)   In Kelley, the husband appealed an order requiring him to pay child support arrearages to the county as the wife's assignee.   The court found there was no concealment and no estoppel but noted “even if there were concealment, the County is not estopped from collection because of the beneficial public policy requiring reimbursement.”  (Id. at p. 616, 231 Cal.Rptr. 6.)

In Leyser the court accepted concealment as a defense to child support arrearages in general, but citing Kelley noted, “Quite different considerations would be present if a public agency had provided support for the benefit of the children and was seeking reimbursement.   A public agency cannot be estopped because of the conduct of the parents.”  (State of Washington ex rel. Burton v. Leyser, supra, 196 Cal.App.3d 451, 457, 241 Cal.Rptr. 812.)

Neither Kelley nor Leyser defines or explains the public policy considerations.   Indeed, the entire discussion in both cases consists of one sentence.   And the conclusions are dictum, at best.   The Smith court does, however, address the issue more completely.⁴  It first explains the children's interests are irrelevant to the decision because they will not receive the arrearages.  (In re Marriage of Smith, supra, 209 Cal.App.3d 196, 202–203, 257 Cal.Rptr. 47.)  Smith next discusses public policy and fiscal implications.  “Whatever the case may be regarding the consideration of defenses of alleged estoppel of public entities with respect to public interest in lands or easements in real property, our holding here need not depend on notions of public policy derived from such a rationale.   Rather, we have previously noted that ‘․ in determining child support rights, including those relating to the assignment of such rights, we are governed not only by the rules of common law, but also by specific statutes enacted by the federal and state legislative bodies.’  [Citation.]  The county has been assigned rights originally held by a private person, and by virtue of that assignment succeeded to those rights subject to any defenses then available against the assignor.   (Civ.Code, § 248 [‘The right of the county to reimbursement shall be subject to any limitation otherwise imposed by the law of this state.’];  County of Santa Barbara v. David R. (1988) 200 Cal.App.3d 98, 102 [245 Cal.Rptr. 836] ․ [‘Under ․ section 248, the county steps into the shoes of the obligee․’].)  ‘As a general rule, the assignee of a chose in action stands in the shoes of his assignor, taking his [or her] rights and remedies subject to any right to offset or other defenses existing against the assignor prior to actual notice of the assignment.’  [Citation.]  ‘ “It would be most unfair that a third person, merely by reason of his [or her] interposition, whether he [or she] was a sovereign or not, should be able to change the rights inter sese between the obligor of the chose in action and his [or her] obligee, who is the objective of the levy or attachment.” ’  [Citations.]  In short, assignment of a sow's ear to the county cannot transform it into a silk purse.”  (In re Marriage of Smith, supra, 209 Cal.App.3d 196, 203–204, 257 Cal.Rptr. 47.)

We agree with Smith.   As the court recognized, the Legislature in enacting Civil Code section 248 determined the county is subject to the same limitations as the assignor.  Civil Code section 248 was repealed, but its provisions appear in Family Code section 4002, subdivisions (a) and (b):  “(a) The county may proceed on behalf of a child to enforce the child's right of support against a parent. [¶ ] (b) If the county furnishes support to a child, the county has the same right as the child to secure reimbursement and obtain continuing support.   The right of the county to reimbursement is subject to any limitation otherwise imposed by the law of this state.”

In re Marriage of Mena (1989) 212 Cal.App.3d 12, 260 Cal.Rptr. 314 is instructive.   There, the trial court vacated a child support order because the county, as the mother's assignee, had not been given notice of the proceedings.   The Court of Appeal, relying on Civil Code section 248 affirmed, finding the county was entitled to the same notice as the mother would have been.   The converse is also true.   If the county, as the assignee, is entitled to the same rights as the assignor, it is likewise bound by the same limitations.   If Donna could not collect the arrearages, neither can the county.

There is another reason we conclude the Damico defense is applicable here.  Leyser, Kelley and even Smith all assume there is but one relevant public policy consideration—the need to reimburse the county for payment of an obligation for which it is not primarily liable.   Such is not the case.

The declared public policy of this state is “to assure minor children frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, and to encourage parents to share the rights and responsibilities of child rearing․”  (Fam.Code, § 3020.)   As different as these public policy considerations may appear, both may be achieved within the context of our facts.   Federal and state legislation provide the mechanism.

A state plan for Aid to Families with Dependent Children (AFDC) must meet minimum mandatory requirements.  (42 U.S.C.A. § 602.)   Accompanying federal regulations require the state plan to provide as a condition of eligibility for assistance that each applicant or recipient of AFDC be required to cooperate with the state in identifying and locating the parent of a child for whom aid is claimed and in obtaining support payments from him or her.  (45 C.F.R. § 232.12.)   In other words, a custodial parent, pursuant to federal law, must identify and help to locate the parent of a child for whom aid is claimed.   Failure to so cooperate may result in the denial of financial assistance.⁵

California's and Arizona's statutory schemes include this federal mandate.   Welfare and Institutions Code section 11477 provides an applicant shall “[c]ooperate with the county welfare department and district attorney ․ in obtaining any support payments due any person for whom aid is requested or obtained․  [¶] A recipient shall be considered to be cooperating with the county welfare department or the district attorney's office and they shall be eligible for aid, if otherwise eligible, if they cooperate to the best of their ability or have good cause for refusal to cooperate.”

Arizona Revised Statutes Annotated section 46–292(B) requires, to be eligible for assistance, that “[a] parent or any other relative who applies for or receives assistance under this title on behalf of a child shall cooperate with the department by providing information, if known, regarding the identity of the child's father and mother and other pertinent information including their names, social security numbers and current addresses unless the department determines good cause exists for failure to cooperate pursuant to title IV–A of the Social Security Act.”

Arizona presumably advanced monies to Donna for eight years (see fn. 3), either because it relied on Donna's false assertions that she did not know Gerald's whereabouts or because the state failed to search for him.   In either event, public policy, no matter how defined, was not served.   Had the state followed federal mandates, Gerald would have begun paying sooner, thus negating or at least decreasing the taxpayers' advances.   And the children would have then been reunited with him.   If Donna refused to cooperate, the state could have refused payment.   Again, less money would have been advanced by the state.⁶  And perhaps Donna would then have had reason to contact Gerald, and the children would have been able to see their father.   If Donna falsely claimed Gerald could not be found, a few simple efforts by the state would have located him and both public policies would have been satisfied.⁷

Moreover, “ ‘[t]he government may be bound by an equitable estoppel in the same manner as a private party when the elements requisite to such an estoppel against a private party are present and, in the considered view of a court of equity, the injustice which would result from a failure to uphold an estoppel is of sufficient dimension to justify any effect upon public interest or policy which would result from the raising of an estoppel.’  [Citation.]”  (Smith v. County of Santa Barbara (1992) 7 Cal.App.4th 770, 774, 9 Cal.Rptr.2d 120.)   This is especially true here where Arizona's inactions caused the continued advancements of the monies for which it now seeks reimbursement.  (City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 91 Cal.Rptr. 23, 476 P.2d 423.)

We conclude public policy considerations allow a Damico active concealment defense asserted when the support has been assigned to a county or a government agency or the arrearages sought are for public assistance payments.

V

The Supreme Court left one other question unanswered.   It did 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.   Because estoppel is an equitable defense, the equities might be different if the concealment were for a shorter time, especially if the innocent child particularly needed the arrearages.”  (In re Marriage of Damico, supra, 7 Cal.4th at p. 685, 29 Cal.Rptr.2d 787, 872 P.2d 126.)

Again, we see no reason for the answer to be different.   Within the context of our facts, the children, even though minors, would not receive the payments on the arrearages as they would constitute welfare reimbursement.  (Crider v. Superior Court (1993) 15 Cal.App.4th 227, 231–232, 18 Cal.Rptr.2d 757.) ⁸

We are mindful it is upon the children's welfare we first focus our attention.   But in so doing, we reach the same result.   The trial court in determining current child support, takes the children's continuing needs into consideration.  (Fam.Code, § 4001.)   Any past unfulfilled needs will therefore not be ignored.

The judgment is affirmed.   Gerald shall receive his costs on appeal.

FOOTNOTES

1.   Family Code section 3556 provides:  “The existence or enforcement of a duty of support owed by a noncustodial parent for the support of a minor child is not 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.”Family Code section 4845, subdivision (b) provides:  “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.”

2.   The Attorney General suggests even if Damico is controlling, “forgiveness of a substantial sum of overdue support may not rest on the uncorroborated and self-serving testimony of the support obligor with custodial parent's side of the dispute remaining unknown.”The Attorney General's reliance on Family Code section 4834 is inapt.   That section mandates a continuance, if requested, when the obligor denies owing the duty to support and the obligee is not present at the hearing.   No such request was made.

3.   The pleadings fail to indicate how much, if any, of the arrearages are for public assistance reimbursement.The uniform support petition filed November 17, 1992, indicates on page 1 it is a “IV–D, NON–AFDC” case and for the collection of URESA arrearages and enforcement of an existing order.Page 2 of the petition alleges petitioner (wife) “is entitled to reimbursement for unreimbursable assistance as stated in the testimony attached․”  No such testimony was attached.Page 2 also seeks a “child support judgment for unreimbursed public assistance.”Pages 4a–(1–2) of the petition indicate $700 a month due but unpaid from March 1985 to October 1992.  (There is no indication any welfare money was advanced during this time.)Page 4b “Public Assistance Payment History” is entirely blank.The reporter's transcript references are as follows:  (1) At the commencement of the hearing, the deputy district attorney indicated he was “seeking back child support arrearages.”  (2) At the conclusion, the following discussion took place:  “[Deputy District Attorney]:  Well, Your Honor, from September until today's date, we would have the $700.   That would be—that's the court order.  [¶] The Court:  That's the court order.  [¶] [Gerald's counsel]:  Okay.  [¶] [Deputy District Attorney]:  Whatever amount that was expended during that time period for welfare will be paid back to the county.  [¶] [Gerald's counsel]:  Yeah.  [¶] [Deputy District Attorney]:  If any.  [¶] [Gerald's counsel]:  Uh-huh.  [¶] The Court:  That would be the $700 then payable to the county as child support and welfare reimbursement here․”Because the result is the same, whether all of the arrearages are for welfare reimbursement or directly payable to Donna, we assume the arrearages are for public assistance.  (County of Santa Barbara v. Flanders (1976) 63 Cal.App.3d 486, 490–491, 495–499, 133 Cal.Rptr. 798.)

4.   We also note In re Marriage of Padilla (A059195)—review granted November 17, 1993, and cause transferred to the Court of Appeal June 10, 1994, for reconsideration in light of In re Marriage of Damico, supra, 7 Cal.4th 673, 29 Cal.Rptr.2d 787, 872 P.2d 126.

5.   Regarding cooperation in obtaining support, 45 Code of Federal Regulations, section 232.12 provides in part:  “The State plan must meet all requirements of this section.  [¶] (a) The plan shall provide that as a condition of eligibility for assistance, each applicant for or recipient of AFDC will be required to cooperate (unless good cause for refusing to do so is determined to exist in accordance with [sections] 232.40 through 232.49 of this chapter) with the State․”

6.   Unpaid child support is a serious problem affecting parents and children and ultimately taxpayers.   Indeed, the estimated outstanding amount of child support in Los Angeles County alone is $1 billion.   (Haefele, Controller Lauds Progress on Child–Support Collection, Metropolitan News–Enterprise (Sept. 13, 1994) p. 11, col. 1.)

7.   Opportunities for welfare fraud also diminish.   A custodial parent would have less incentive to conceal his or her whereabouts.

8.   If reimbursement is justified, it is Donna who should pay.   She helped to create the arrearages by concealing her whereabouts and fraudulently receiving welfare assistance.

SONENSHINE, Associate Justice.

WALLIN, Acting P.J., and CROSBY, J., concur.