Metropolitan News-Enterprise

Monday, August 12, 2019

Page 1

Trial Court Cant Order Forgiveness of Past-Due Child SupportC.A.

By a MetNews Staff Writer

The Sixth District Court of Appeal, in an opinion certified for publication on Friday, reversed an order retroactively sparing a father from child support obligations for the period from 1998 to 2005 when he was incarcerated.

A support order was made in 1995. The father, Gabriel Silva, was to pay $360 per month to the mother, Sandra Carzon.

Silva did not come forth with the fact of his incarceration until the end of a hearing in 2015 at which he was told that the Santa Clara County Department of Child Support Services was seeking an increase in the support obligation. Santa Clara Superior Court Judge Irwin Josephwho found that Silva was about $114,000 behind in his paymentstold the father to come back with proof of the incarceration.

Trial Court Order

After a further hearing, Silva declared, in a written order on Feb. 1, 2016:

Based on Family Code section 290 and equitable consideration the court suspends child support for the period 05/1998 through 07/2005 due to fathers lengthy incarceration.

Sec. 290 provides:

A judgment or order made or entered pursuant to this code may be enforced by the court by execution, the appointment of a receiver, or contempt, or by any other order as the court in its discretion determines from time to time to be necessary.

Josephs action reduced the arrearages by about $70,000. (The judge also increased monthly payments by $100.)

Danners Opinion

In an opinion reversing that order, Justice Allison Danner said:

[T]he trial court had no discretion to absolve father of support arrears (or associated interest that was affected by decreasing the overall arrears) that had accrued years earlier .The trial courts ruling effectively waived fathers arrears and thus violated the principle that a final support order may not be modified retroactively.

Sec. 290, she noted, deals with enforcement, not forgiveness. She wrote:

Under section 290, the trial court has broad discretion to fashion orders enforcing family law judgments .However, in exercising that discretion, a trial court may not ignore express statutory requirements .

The trial courts ruling effectively reduced fathers arrears by approximately $70,000. The trial courts order did not simply stay collection of an ordered amount; it eliminated over half of the amount father owed and functioned effectively as a forgiveness of the amount of child support father accrued during his incarceration.

The trial court did not have this authority.

Danner noted that statutes were enacted in 2010 and 2015 suspending support obligations while a parent is in prison but, she pointed out, neither statute applies to pre-2011 orders.

The case is S.C. v. G.S. (Santa Clara County Department of Child Support Services), 2019 S.O.S. 3892.

Initially filed July 12, it was certified for publication at the request of the Santa Clara County Department of Child Support Services.

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