IN RE: the MARRIAGE OF Olga E. and Guadalupe R. PADILLA. (1993)

I. INTRODUCTION

In this case we hold that in determining the amount of child support arrearages owed to a county as the assignee of a custodial parent upon payment of public assistance, the court shall consider, for purposes of estopping collection of pre-assignment arrearages, evidence that the custodial parent had deliberately concealed the children from the obligor parent.

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).

At some point Olga became a resident of Contra Costa County and began receiving public assistance, assigning to the county her rights to unpaid child support.   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.

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.

There is 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 the well reasoned opinion in Solberg v. Wenker (1985) 163 Cal.App.3d 475, 209 Cal.Rptr. 545 held that deliberate concealment of a child is not merely interference with visitation and 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 pre-assignment arrearages, stating that “assignment of a sow's ear to the county cannot transform it into a silk purse.”   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  This split of authority was renewed this year when In re Marriage of Damico (1993) 15 Cal.App.4th 263, 19 Cal.Rptr.2d 88 ⁴ followed the Solberg–McLucas–Smith line of cases while In re Marriage of King (1993) 16 Cal.App.4th 1250, 20 Cal.Rptr.2d 486 followed Tibbett.

In a minute order dated June 2, 1992, the trial court acknowledged a split of authority, asserted that Tibbett was “better-reasoned,” and ruled that in determining the amount of arrearages at a hearing on July 9 the court would 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.

III. DISCUSSION

A. The Notice of Appeal

On July 22, 1992, the 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

 As would be expected, the parties each urge us to follow the case authority in support of their conflicting positions.   The conflict in the cases arises from differing interpretations of language in Code of Civil Procedure section 1694 and Civil Code section 4382.  Section 1694 states, “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.”  (Italics added.)  Section 4382 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.”  (Italics added.) ⁵

 Under these statutes, collection of child support arrearages cannot be estopped based on the custodial parent's “interference” with or “refusal ․ to implement” the noncustodial parent's visitation rights.   The courts in Tibbett and King concluded that “interference” includes concealment.   (In re Marriage of Tibbett, supra, 218 Cal.App.3d at pp. 1253–1254, 267 Cal.Rptr. 642;  In re Marriage of King, supra, 16 Cal.App.4th at pp. 1252–1254, 20 Cal.Rptr.2d 486.)

The court in Smith concluded otherwise:  “If a parent makes a strong showing of sabotage of visitation rights, as by concealment of the whereabouts of the children, an estoppel or waiver can thereby arise which bars liability for past support payments which would otherwise have been payable during the period of concealment.”  (In re Marriage of Smith, supra, 209 Cal.App.3d at p. 202, 257 Cal.Rptr. 47.)   The court further held that if the evidence showed a custodial parent was estopped from receiving or had waived the right to child support payments that had accrued prior to an assignment to the county upon payment of public assistance, the estoppel or waiver would extend to the county.  (Id. at p. 204, 257 Cal.Rptr. 47.)

The court in Damico followed Smith and rejected the Tibbett court's broad extension of the statutory proscriptions to encompass deliberate concealment:  “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 Damico, supra, 15 Cal.App.4th at 268, 19 Cal.Rptr.2d 88 original italics.)   In short, concluded Damico, active concealment is “an implicit election to raise the child without financial assistance from the noncustodial parent.”  (Id. at 269, 19 Cal.Rptr.2d 88.)

The Tibbett and King opinions are based upon the reading by those courts of our Supreme Court's opinion in Moffat v. Moffat (1980) 27 Cal.3d 645, 165 Cal.Rptr. 877, 612 P.2d 967 and of Code of Civil Procedure section 1694 and Civil Code section 4382, which make clear that the duty to pay child support and interference with visitation are separate issues, child support being unaffected by the custodial parent's interference with the noncustodial parent's rights of visitation.   In other words, as the Tibbett and King courts saw it, wilful concealment of the child from the noncustodial parent falls within the statutory context of interference with visitation or a failure to implement visitation.

Referring to Moffat, the Tibbett court erroneously concluded, “In 1980, the California Supreme Court issued its only decision discussing this issue.”   (In re Marriage of Tibbett, supra, 218 Cal.App.3d at p. 1252, 267 Cal.Rptr. 642.)   Our Supreme Court has never dealt with the issue of whether concealment constituted an estoppel to the collection of child support arrearages, and did not do so in Moffat.   Indeed, the court stated that the issue to be decided was limited to “whether a custodial parent whose right to enforce child support payments has been erroneously suspended by a contempt order for her willful denial of the noncustodial parent's visitation rights is entitled to maintain an independent action to compel the payment of child support.”  (Moffat v. Moffat, supra, 27 Cal.3d at p. 648, 165 Cal.Rptr. 877, 612 P.2d 967.)   The issue of concealment was not involved in Moffat.

With regard to whether the Legislature has precluded the use of estoppel when the custodial parent has concealed the child, we agree with the Damico court that it has not.  “Sections 1694 and 4382 specifically provide that the child support obligation is not extinguished by the custodial parent's ‘interference’ with or ‘refusal ․ to implement’ visitation granted by the court, conduct which we do not equate with deliberate ‘sabotoge’ of visitation rights by concealment of the child.  [Citations.]  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.”  (In re Marriage of Damico, at 267, 19 Cal.Rptr.2d 88.)

Thus we conclude that neither our Supreme Court nor the Legislature has precluded trial courts from considering whether a custodial parent's concealment of a child, as contrasted to interference with visitation, may constitute an estoppel to the collection of child support arrearages accruing during the period of concealment.

The best interests of the child, including necessary child support, is a paramount consideration, although a child's well-being transcends material considerations.   However, under the facts of the present case that factor plays no role.   Guadalupe has conceded his obligation to pay post-assignment arrearages, and the Padilla children (who have now reached the age of majority) would receive no tangible benefit from the county's collection of pre-assignment arrearages.  (In re Marriage of Smith, supra, 209 Cal.App.3d at p. 202, 257 Cal.Rptr. 47;  cf. In re Marriage of Damico, 15 Cal.App.4th at 268, 19 Cal.Rptr.2d 88 [“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”].)

 Because the decision whether estoppel may be raised as a defense to the payment of child support arrearages is an equitable one, we weigh the policy considerations involved.   First and foremost, there is the strong legal and moral duty to support one's child;  however, as previously mentioned, that is not directly applicable here.

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 the Family Law Act, including enforcement by contempt, terminating or reducing spousal support, requiring a bond to assure visitation, and a change of custody.  Moffat, supra, 27 Cal.3d at p. 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.   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 Civil Code section 4600.5,⁶ which “declares it is the public policy of this state to assure minor children of 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, is a criminal act prohibited by Penal Code sections 277, 278 or 278.5.   In any event, it is contrary to public policy to reward a criminal wrongdoer and punish an innocent victim by requiring payment of child support for the period of time the wrongdoer is committing criminal acts.  (For a general discussion of parental criminal conduct resulting from child abduction, see Hogoboom & King, Cal. Practice Guide:  Family Law (1992) § 7:155 et seq.)

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 financially for concealing the child.   If the parent concealing the child reappears seeking the arrearages after the child has reached the age of majority, the arrearages are payable to the parent, 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 with a windfall at the expense of the victim parent, with absolutely no benefit to the child.⁷  This is not enforcing the child's right to support, it is a reward to the parent for concealing the child and violating the law.   Indeed, absent estoppel, the concealing parent could recover the arrearages even if the child had died.

We therefore agree with the reasoning of Solberg, McLucas, Smith and Damico and decline to follow what we believe to be erroneous reasoning in Tibbett and King.   We conclude that the trial court in the present case erred in refusing to consider evidence of deliberate concealment for purposes of estoppel as to pre-assignment arrearages.

Since this continues to be a recurring issue, the present split of authority is contrary to the goal that the law be predictable and that the courts consistently apply the same legal rule to claims of concealment.   The California Supreme Court's grant of review in Damico (ante, fn. 4) will ensure that there will be one consistently applied statewide rule.

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 pre-assignment 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, fn. 1, 274 Cal.Rptr. 911.)

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 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.   The California Supreme Court granted review in Damico on August 19, 1993 (S033148), so that the superseded Court of Appeal opinion is no longer published.  (Cal. Rules of Court, rule 976(d).)   The Rules of Court state that, with exceptions not applicable here, “An opinion that is not ordered published shall not be cited or relied on by a court or a party in any other action or proceeding․”  (Cal.Rules of Court, rule 977(a).)   However, two recent opinions from the California Supreme Court have cited unpublished opinions for reasons other than reliance upon them.   In Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254, footnote 9, 19 Cal.Rptr.2d 698, 851 P.2d 1307 the majority cited a depublished concurring Court of Appeal opinion to indicate that the majority's analysis had been adapted from that opinion.   In People v. Saunders (1993) 5 Cal.4th 580, 607, 20 Cal.Rptr.2d 638, 853 P.2d 1093 a dissenting opinion cited two depublished Court of Appeal opinions in asserting that the depublication orders coupled with a simultaneous denial of review of a contrary opinion had indicated the Supreme Court's views on the point at issue in those cases.The message from the Supreme Court seems to be that unpublished opinions may be cited if they are not “relied on.”  (Cal. Rules of Court, rule 977(a).)   That is our situation here.   We cite Damico not to rely on it, but to highlight the present split of authority and to help elucidate our agreement with the Solberg–McLucas–Smith line of cases.

5.   Sections 1694 and 4382 were repealed in 1992, operative January 1, 1994 (stats. 1992, ch. 162, §§ 3, 6), to be replaced by Family Code sections 3556 and 4845.

6.   Section 4600.5 was repealed in 1992, operative January 1, 1994 (stats. 1992, ch. 162, § 3), to be replaced by Family Code sections 3002–3004, 3006–3007, 3024–3025 and 3080–3089.

7.   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, which accrued while his children were purportedly concealed from him.   Certainly there is nothing in the record which indicates 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 additional equitable considerations 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 reward Olga financially for her misconduct.

KING, Associate Justice.

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