IN RE: the MARRIAGE OF Tomoyo and Burnham MOFFAT. (1979)

Burnham Moffat appeals an order of the superior court awarding to his former wife, Tomoyo Moffat, the sum of $459 per month child support pursuant to the Revised Uniform Reciprocal Enforcement of Support Act (Code Civ.Proc., s 1650 et seq. (hereinafter referred to as RURESA)).

FACTS

Burnham and Tomoyo Moffat, then husband and wife, separated in 1971. An interlocutory judgment of dissolution of marriage was entered on January 28, 1972. Pursuant to that judgment Tomoyo was awarded custody of the two minor children, Susan and Michelle, with reasonable rights of visitation to their father; Burnham was ordered to pay $300 per month support for each child and $400 per month spousal support plus additional amounts to settle community property interests.

Burnham regularly exercised his visitation rights with the cooperation of his former wife until sometime in June 1972. Tomoyo at that time began to interfere with Burnham's attempts at visitation and subsequently she accused him of sexually molesting the children. Tomoyo resorted to various legal remedies to prevent further visitation by Burnham and finally initiated criminal charges accusing him of sexually molesting his daughters. Eventually that complaint was dismissed and the court ordered visitation to resume but Tomoyo failed to cooperate with that order.

On April 2, 1973, Burnham filed an order to show cause re contempt and a writ of habeas corpus to enforce the court's prior order awarding him the children for six weeks during the summer. At the hearing on these motions on August 16, 1973, the court found Tomoyo to be in contempt but suspended the contempt and, instead, excused Burnham from making spousal or child support payments until such time as his former wife should comply with the order granting him six weeks visitation. Tomoyo still did not comply with the visitation order.

In September 1975 Tomoyo took the children and moved to Virginia to live. There she applied for and received public assistance in the amount of $291 per month. On September 26, 1975, she filed in Virginia to obtain child support payments from Burnham under RURESA. That petition was, for unexplained reasons, returned to Virginia and on June 8, 1976, returned to California with a request that it be processed expeditiously. The petition was filed July 21, 1976. Burnham Moffat filed on February 11, 1977, a motion to dismiss which the court heard and denied on March 11, 1977. An order for temporary reciprocal support was entered and proceedings were continued to permit Burnham to obtain Tomoyo's deposition.

The final hearing in the matter was conducted in September 1977. Commissioner Denner on September 29, 1977, made findings that Burnham Moffat had an existing gross income of $621 per week, an existing net income of $247 per week and a net worth of approximately $250,000. The court found further that his former wife had, for at least the two preceding years, prevented Burnham from visiting his children, that she had thereby violated numerous orders of the California court; that she never purged a contempt charge imposed for not producing the children in court pursuant to one of those orders; and that she was nonetheless not estopped from obtaining child support from her former husband under RURESA pursuant to Code of Civil Procedure section 1694. Commissioner Denner recommended to the court that each child required $225 per month for basic needs of food, shelter and clothing and that Burnham be ordered to pay this amount plus the 2 percent trustee fee (for a total of $459 per month) through the office of the court trustee. These recommendations were ordered by Judge Christian E. Markey, Jr.

ISSUES

Burnham Moffat contends on appeal that child support was improperly ordered in the RURESA proceeding because either (1) his former wife was estopped to file a petition under RURESA due to her contempt of the court's earlier order for visitation, unclean hands and other alleged misconduct; or (2) the order of Judge Shidler conditioning enforcement of Burnham's duty to pay child support on his former wife's compliance with the order for six weeks visitation, which had become final without appeal, barred further litigation of the issue of his duty to pay child support.

DISCUSSION

I

Burnham contends that his former wife is estopped to pursue the remedies of RURESA. However, unclean hands, contempt of court, denial of visitation, circumvention of California laws, bad faith and other alleged misconduct of the mother even if true do not affect the rights of the children to support. “The single issue to be resolved in this action brought under the ‘Uniform Reciprocal Enforcement of Support Act’ is the question of entitlement of dependents to support by one legally liable to support them. . . .” (Clark v. Clark (1966) 246 Cal.App.2d 619, 622, 54 Cal.Rptr. 875, 877.)

The statutory requirements of the two code sections comprising the form of RURESA as adopted in California are clear. Code of Civil Procedure section 1689 provides that “A support order made by a court of this state pursuant to this title (i.e., RURESA) does not nullify and is not nullified by a support order made by a court of this state pursuant to any other law or by a support order made by a court of any state pursuant to a substantially similar provision of law, Regardless of priority of issuance, unless otherwise specifically provided by the court.” (Italics added.) Furthermore, Code of Civil Procedure section 1694 provides that “(t)he 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.”

The court in a proceeding under RURESA is concerned merely with legal matters supporting its jurisdiction, such as the rights of the petitioning parent to custody, the financial needs of the children for support, the duty of the parent sought to be charged, and that parent's duty and failure to pay support for his children. As a general rule, the purpose of RURESA may not be frustrated by permitting the behavior of the mother to interfere with the children's right to child support. (See Code Civ.Proc., s 1694.) The trial court found on substantial evidence that Tomoyo was not by her conduct estopped to seek and obtain child support under RURESA based on the children's need, and that finding is supported by her petition alleging the order for custody, the financial needs of the children and their father's duty of support.

II

Burnham contends that the order of August 16, 1973, excusing his duty of support pending his former wife's cooperation with his rights of visitation is res judicata and renders the order for child support in the RURESA proceedings invalid. However, orders regarding child support and custody are not final in that sense but remain subject to re-examination and modification. (Civ.Code, s 4516.) Therefore, “(a)lthough the doctrine of res judicata applies generally to judgments of divorce which settle property rights (citations), it can have no application to the provisions for the custody and support of children. . . .” (Lucachevitch v. Lucachevitch (1945)69 Cal.App.2d 478, 485, 159 P.2d 688, 692.)

It is not relevant that Tomoyo was found to be in contempt for failure to cooperate with Burnham's efforts to visit the children since the orders for support and visitation are not interdependent with respect to the RURESA proceeding. “(T)he 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.” (Code Civ.Proc., s 1694.) This is an independent action for enforcement of an obligor's duty of support in which the most significant element is the child's welfare and need for support; the mother is merely the conduit for the support for the child. (Williams v. Williams (1970) 8 Cal.App.3d 636, 640, 87 Cal.Rptr. 754; McNabb v. McNabb (1941) 47 Cal.App.2d 623, 625-626, 118 P.2d 869.) Separate proceedings are available for the enforcement of the visitation order of the California court. (See, e.g., Pen.Code, s 278.5.)

DISPOSITION

The orders appealed from are affirmed.

I would reverse the order. In my view the record fails to establish that appellant had the duty to support the minors at the time the order was made.

Interlocutory decree dated January 28, 1972, ordered appellant to pay $300 per month for the support of each minor. He regularly supported and visited the children and encountered no resistance from respondent until April 2, 1972, when he filed order to show cause to force her to comply with certain property provisions of the interlocutory decree. Respondent countered with order to show cause to terminate appellant's visitation rights on the ground that he sexually molested the children. After a full hearing the court expressly found respondent's allegations of child molestation to be false, and ordered that appellant be permitted to resume visitation commencing March 18, 1973. Upon respondent's subsequent refusal to permit appellant to visit the children, he filed petition for writ of habeas corpus; after a hearing thereon the court on July 19, 1973, granted the petition, ruled that appellant was entitled to have the children with him and ordered that he “have custody of the children from this date (July 19, 1973) to 30th of August.” Respondent refused to permit appellant to have the children; appellant initiated order to show cause re contempt of order granting writ of habeas corpus. After a hearing, the court on August 16, 1973, found respondent to be in contempt of the July 19, 1973, order, and ordered “Imposition of sentence on contempt is suspended; however, Petitioner is excused from making any spousal or child support payments until the Respondent has complied with the order granting him six weeks summer visitation.”

Thereafter respondent initiated a variety of legal proceedings¹ designed to circumvent the order and deprive appellant of his visitation rights; in each, she charged appellant with molesting the children; none of these proceedings was successful. In September 1975 respondent quit her job in the office of the district attorney, moved to Virginia taking the children with her and applied for and received public welfare. Thereafter this petition for child support was filed pursuant to the Uniform Reciprocal Enforcement of Support Act. Over objections of appellant the court made the order from which this appeal is taken.

“The primary purpose of the Act is to provide a person in one state with the means expeditiously to secure money for support from a person residing in another state who is Legally liable for support. (Citations.)” (Banks v. McMorris, 47 Cal.App.3d 723, 728, 121 Cal.Rptr. 185, 189, emphasis added.) Banks cites Clark v. Clark, 246 Cal.App.2d 619, 54 Cal.Rptr. 875 on which the majority opinion relies for the following quote: “The single issue to be resolved in this action brought under the ‘Uniform Reciprocal Enforcement of Support Act’ is the question of entitlement of dependents to support by one legally liable to support them.” (P. 622, 54 Cal.Rptr. p. 877, emphasis added.) In Clark v. Clark the obligation of the father to support the children was not disputed. Thus it is clear under the case law and the provisions of the Act that before an order for support may be made thereunder the legal liability of the father to support the children must be established. Section 1653, subdivision (b), Code of Civil Procedure defines “ ‘Duty of support’ ” as “a duty of support whether imposed or imposable by law or by order, decree, or judgment of any court whether interlocutory or final . . . .”

Here, at the outset a duty of support in the part of appellant existed because he is the father of the minor children; this duty was incorporated in the decree of January 28, 1972. However, on August 16, 1973, appellant was relieved of this legal duty to support the minors by order issued on the order to show cause re contempt of order granting writ of habeas corpus which adjudged respondent in contempt and further ordered imposition of sentence on the contempt suspended and that appellant is excused from making any spousal or child support payments until respondent complies with the order granting him six weeks summer visitation dated July 19, 1973.

Indeed the propriety of the order of August 16, 1973, is questionable under Smith v. Superior Court, 68 Cal.App.3d 457, 137 Cal.Rptr. 348 which holds that “a child may not reasonably be denied support by one parent because of violation of a court order by the other.” (P. 465, 137 Cal.Rptr. p. 353.) But even though the order may be erroneous, the merits of the claim on which it was based were tried and determined on a full hearing, and until vacated or set aside the order is final.² (Cf. Hight v. Hight, 67 Cal.App.3d 498, 502, 136 Cal.Rptr. 685.) In my view section 1689, Code of Civil Procedure which relates to the effect of other orders of the superior court on an order under the Act concerns not the duty of support but the amount of support ordered, and credits for payment. This does not change the result here because the order of August 16, 1973, directly relates to the basic duty of support.

At the time the court made the order under the Uniform Reciprocal Enforcement of Support Act (October 11, 1977) appellant was not legally liable to support the minors, and the recitation in the order that “a duty of support exists pursuant to the authority of Code of Civil Procedure section 1694 despite the denial of visitation” is not supported by the evidence. Section 1694, Code of Civil Procedure relates to the rules of evidence and an interference with the rights of custody and visitation. It does provide “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.” It is clear from the language of the statute that any interference with custody or visitation rights cannot be the basis of litigation for the first time under the Uniform Reciprocal Enforcement of Support Act (see Smith v. Superior Court, 68 Cal.App.3d 457, 465, 137 Cal.Rptr. 348), and initially a father cannot use such interference as a defense in proceedings under the Act. But this is not the case here. The interference by respondent with appellant's visitation rights had received judicial attention several years before resulting in the final order of August 16, 1973. While this order may not be used to show respondent's interference with appellant's visitation rights as a defense in a proceeding under the Act, the order nevertheless exists and relieves appellant of the basic duty of support. On the record before this court I can only conclude that because of the order of August 16, 1973, the appellant's duty of support was not established.

FOOTNOTES

1.  Respondent initiated a proceeding to have the children made wards of the juvenile court; this proceeding was dismissed. In January 1974 respondent moved the court to terminate the order of July 19, 1973, granting writ of habeas corpus and after hearing thereon, the motion was denied on January 17, 1974. She then had the district attorney initiate criminal proceedings against appellant for a violation of section 270, Penal Code which later were dismissed; respondent appealed from the dismissal order to the appellate department of the superior court which affirmed the order; certification was denied by this court.

2.  Although it is well settled that support and custody orders are subject to reexamination and modification by the court, the order of August 16, 1973, is an order issued on contempt. Respondent has never purged herself of the contempt; the order of August 16, 1973, has never been vacated and no appellate review of said order has ever been sought. The order on the writ of habeas corpus dated July 19, 1973, the violation of which by respondent was the basis of the contempt order of August 16, 1973, has never been terminated, modified, vacated or appealed. We note that in January 1974 respondent on motion sought to have the court terminate that order but the motion was denied on January 17, 1974.

HANSON, Associate Justice.

HINZ (Judge of the Superior Court of Los Angeles County sitting under assignment by the Chairperson of the Judicial Council), J., concurs.