Filed 7/12/19; pub. order 8/9/19 (see end of opn.)




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SIXTH APPELLATE DISTRICT


S.C.,                                                 H045093
                                                     (Santa Clara County
         Plaintiff and Respondent,                    Super. Ct. No. 1-95-CP-004066)

         v.

G.S.,

         Defendant and Respondent;

SANTA CLARA COUNTY
DEPARTMENT OF CHILD SUPPORT
SERVICES,

         Intervenor and Appellant.




         This dispute centers on child support arrears owed by respondent G.S. (father) to
respondent S.C. (mother) pursuant to an order issued by the trial court in 1995.1 In
March 2015, appellant and intervenor Santa Clara County Department of Child Support
Services (the Department) brought a motion seeking to increase father’s monthly child
support payments. In the course of litigation over the motion, father for the first time




         1
             Neither father nor mother has participated in this appeal.
informed the Department and the trial court that he had been incarcerated from 1998 to
2005. Prior to 2015, father had not sought a modification of the child support order.
       In February 2016, the trial court granted the Department’s motion to increase
father’s monthly payments but also, on the court’s own motion, awarded father “equitable
credit” for father’s period of incarceration. Invoking its authority under Family Code
section 290,2 the trial court reduced the amount owed by father in child support by
approximately $70,000.
       The Department appeals the trial court’s February 2016 order, arguing that the
trial court lacked authority to retroactively adjust father’s arrears. For the reasons
discussed further below, we agree. Although legislation enacted in 2010 and 2015
suspended the accrual of child support for incarcerated parents, these statutes do not
apply retroactively. Father’s child support order was issued in 1995, and he did not seek
modification of it either when he was committed to prison or upon his release. The trial
court lacked the authority in 2016 to reduce father’s arrears by the amount father had
accrued during his incarceration from 1998 to 2005. We therefore reverse the order.
                    I. FACTS AND PROCEDURAL BACKGROUND
       The facts in this appeal are undisputed. Father is the parent of daughter A.C., born
in 1994. In 1995, following a request by mother for child support pursuant to a civil
paternity action in which father participated, the trial court ordered father to pay $360 per
month in child support (the 1995 order). The Department did not participate in the
paternity action leading to the 1995 order.
       Father was incarcerated from approximately May 1998 to July 2005. Father never
sought to modify, quash, or otherwise terminate the 1995 child support order based on his




       2
           Unspecified statutory references are to the Family Code.

                                                  2
incarceration. In approximately 2004, mother sought assistance from the Department in
enforcing child support against father.3
       In March 2015, the Department filed a notice of motion and requested a hearing
for the purpose of increasing father’s monthly payment to liquidate his arrears. The
Department noted it was requesting an order to “[a]dd/[i]ncrease liquidation of arrears
consistent with the obligor’s income,” and, more specifically, that father be ordered to
pay at least $500 per month to liquidate his debt. In further support of its request, the
Department stated that the child was now emancipated, father owed approximately
$113,000 in arrears, including interest, and the previously-ordered monthly payback of
$40 was insufficient to pay the accruing interest charges of over $400 per month.
       In July 2015 the parties appeared for a hearing on the Department’s motion. The
Department noted that father had offered to pay $80 per month because he believed he
would soon get a job. Mother objected to the amount as too low and that it was a method
of “delay,” but she stated that $100 would be “sufficient.” The trial court told father he
needed to secure full-time employment. The trial court scheduled hearings for both
August and December 2015 to make sure father was working at least 25 hours a week.
The trial court issued an interim order finding that father owed approximately $114,000
in child support arrears and ordering monthly payments of $80.
       At the end of the July 2015 hearing, father asked, “how do I go about filing a
motion?” When the trial court asked father about the subject of the motion, father replied
“[f]or arrears.” When the trial court expressed confusion, noting they were already there
“on arrears,” the Department’s representative replied, “We’re here on the arrears
payment, Your Honor. Father’s disputing the total amount of arrears which are in excess


       3
        On May 6, 2010, the trial court issued an “order after hearing” in which the trial
court found father owed arrears of $93,943 and ordered father to pay $40 per month
beginning May 1, 2010. The 2010 order does not reference father’s incarceration.

                                                 3
of $114,000 right now. [¶] Father’s alleging that he was incarcerated for several years.”
This was apparently the first time that father had informed the Department or the trial
court that he had been to prison.
         The trial court told father that he had to bring written proof that he had been
incarcerated. Father asked, “[d]o I have to file the motion . . . or just bring you the
paperwork?” The court responded, “why don’t you get [the paperwork] before August
and then you can bring it up to me at that point. The Department is not anxious to have a
lot of motions filed. If you can show evidence that you were incarcerated, it may be that
talking together you can come to an agreement and not need a motion.”
         The trial court filed an order in August 2015 that increased father’s monthly
payments to $100.4 On December 9, 2015, father and the Department appeared for a
further hearing on the issue of arrears. Mother was not present. The attorney for the
Department told the trial court that they were before the court on “the Department’s
motion to increase the arrears payback. . . . . Father owes in excess of $100,000 in
arrears. We were asking for that to be increased.” The Department also stated “[t]he
other issue of note is that the Court on its own order did add a determination of arrears to
be heard today. . . . Father alleged prior periods of incarceration. . . . He was ordered to
provide some documentation today from his . . . [¶] parole agent. It does look like he
has a letter that states he was in custody from May 3rd of 1998 through July 3rd of
2005.”
         The Department stated that mother was not amenable to forgiving or waiving the
arrears, and that because of the 1995 support order the court did not have the equitable
power to forgive the arrears accrued during father’s incarceration. In support of its
position, the Department relied on this court’s decision in County of Santa Clara v.
Wilson (2003) 111 Cal.App.4th 1324 (Wilson).

         4
             The record on appeal does not contain a transcript from the August 2015 hearing.

                                                   4
        The trial court asked the Department, “we’re here today because of Father’s
request?” The Department replied, “Actually, Your Honor, we’re on today because the
Department requested an increase in the arrears payment. The Court after hearing
Father’s testimony regarding his incarceration periods asked our office to prepare an
audit which we did and we served him.” As of the date of the December 2015 hearing,
the Department calculated father’s arrears at $115,784.95. The Department reiterated its
stance that pursuant to Wilson “retroactive modification is not permitted and the arrears
that accrued prior to the motion cannot be forgiven.” The trial court stated it would “do
some research because I remember I did this once before and I found a means of
equitable relief and I need to go back and find it again. It was a narrow, narrow
passageway.”
        The next day, on December 10, 2015, the trial court issued an order taking under
submission “the issue of arrears.” In its order, the trial court found that the Department’s
calculation of arrears done in July 2015 “does not take into account incarceration time.”
The trial court ordered the Department to “recalculate the arrears, taking into account and
suspending obligation for payment by father for the months he was incarcerated, plus one
month after his release.” In the order the trial court set a new hearing date of January 28,
2016.
        On January 28, 2016, all parties, including mother, appeared for a final hearing on
the arrears owed by father. The trial court asked the Department whether its latest
calculation of father’s arrears “reflects the most recent order of the Court giving credit to
Father from 1998 to [20]05.” The Department stated that it had done a calculation
pursuant to the court’s order that resulted in an arrears total of $40,747.45.
        The Department again disputed that the trial court had authority to forgive the
arrears father accrued while incarcerated. The trial court heard testimony from father
that, based on his current wages, father had only $300 per month after he paid his bills.


                                                  5
The trial court further noted that the interest alone on his arrears amounted to over $400
per month.
       The trial court stated that it “intend[ed] to essentially sustain my previous ruling,
that is order that pursuant to Section 290 of the Family Code, and other equitable
principles, that the period . . . May 1998 through I think August 2005, because of his
incarceration, support during that time period should be suspended. [¶] And that’s the
extent of my ruling. I’m not affecting interest. I’m not affecting anything else.”
       Mother objected, stating “it’s not my fault that he went to jail.” She argued that
the system was being too “forgiving” and noted that she had worked two jobs to support
her family. The trial court replied, “[i]f in May 1998 [father] sent a letter to the
Department saying I’ve just gone to prison, what do I do to suspend my payments? The
Department would have in May of 1998 helped him in one manner or another file the
appropriate papers so that his payments would be suspended for that time period that he
was in jail. So you would have the exact same argument, which I respect, but he would
then be entitled to relief, legal relief.”
       The trial court “sustain[ed] the prior finding giving equitable credit for the time
period described” and found “the amount of arrears to be $40,747.45.” The trial court
also granted the Department’s request to increase the monthly payment of arrears.
       On February 1, 2016, the trial court issued a written “Order After Hearing” (some
capitalization omitted), finding that father owed child support arrears in the amount of
$40,747.45 to be paid in monthly installments of $120 per month and with interest
accruing. The order further stated, “Arrearages are set in the amount of $40,747.45, for
the period 09/01/1995 through 01/04/2016. Of this, the principal amount is $16,078.61
and the interest is $24,668.84. [¶] 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. [¶] The court makes this order over the objection
of the Department of Child Support Services and the objection of the mother.” (Some
                                                  6
capitalization omitted.) The order attached the Department’s report prepared at the trial
court’s request that indicated the monthly support amount owed was “0.00” from May
1998 through July 2005.
       The Department timely appealed.
                                     II. DISCUSSION
       The Department argues the trial court lacked authority to issue the February 1,
2016 order because the trial court could not waive child support arrears that father had
previously accrued. For the reasons set forth below, we agree with the Department and
conclude the trial court erred.
       We first examine our jurisdiction. In both its original and amended notices of
appeal, the Department asserts that this appeal follows an order after judgment under
Code of Civil Procedure section 904.1, subdivision (a)(2). However, in its civil case
information statement, the Department asserts that its appeal is taken from an order or
judgment under Code of Civil Procedure section 904.1, subdivision (a)(3)–(13), and
Family Code section 3554.5 The Department’s opening brief states that the February 1,
2016 order is appealable under subdivisions (a)(1) and (a)(10) of the Code of Civil
Procedure section 904.1 and Family Code section 3554.
       Postjudgment orders relating to child support arrears are appealable. (Code Civ.
Proc., § 904.1, subd. (a)(2) [order after judgment].) In 1995, the trial court issued a final
order directing father to pay child support that followed a hearing at which father
appeared. Although the form used for the order was not formally titled a “judgment,” the
substance of the order was to determine the matter of child support owed by father, and
“such a determination is substantially the same as a final judgment in an independent
proceeding.” (In re Marriage of Skelley (1976) 18 Cal.3d 365, 368.) We therefore


       Family Code section 3554 states that “[a]n appeal may be taken from an order or
       5

judgment under this division [relating to support] as in other civil actions.”

                                                  7
conclude that the February 1, 2016 order is appealable as a postjudgment order under
Code of Civil Procedure section 904.1, subdivision (a)(2). (See Wilson, supra, 111
Cal.App.4th at p. 1325 [reviewing a similar postjudgment order].)
       Turning to the merits of the Department’s argument, we conclude that the trial
court committed clear and reversible error when it sua sponte recalculated father’s child
support arrears. Child support awards are generally reviewed for abuse of discretion. (In
re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282.) As we have observed
previously, however, “the trial court’s discretion is not so broad that it ‘may ignore or
contravene the purposes of the law regarding . . . child support.’ ” (Id. at p. 283.) The
Department does not question the monthly payment schedule set by the trial court but
instead contends the trial court lacked authority to waive arrears accrued during father’s
incarceration. There are no facts in dispute. As the issue presented here is a pure
question of law, we review it de novo. (See In re Marriage of Gruen (2011) 191
Cal.App.4th 627, 637 (Gruen).)
       We begin with the Family Code. Each parent has an “equal responsibility” to
support the parent’s child. (§ 3900.) Child support refers to “a support obligation owing
on behalf of a child” (§ 150) and includes “past due support or arrearage when it exists.”
(Ibid.) An order for child support “continues in effect until the order (1) is terminated by
the court or (2) terminates by operation of law [pursuant to specified statutes, including
section 3901].” (§ 3601, subd. (a).) The duty of support continues “as to an unmarried
child who has attained 18 years of age, is a full-time high school student, . . . and who is
not self-supporting, until the time the child completes the 12th grade or attains 19 years
of age, whichever occurs first.” (§ 3901, subd. (a)(1).) “If a parent has been ordered to
make payments for the support of a minor child, an action to recover an arrearage in
those payments may be maintained at any time within the period otherwise specified for
the enforcement of such a judgment, notwithstanding the fact that the child has attained
the age of 18 years.” (§ 4503.)
                                                 8
       In terms of modifying support and its impact on accrued support, “ ‘[t]he
Legislature has established a bright-line rule that accrued child support vests and may not
be adjusted up or down. [Citations.] If a parent feels the amount ordered is too high—or
too low—he or she must seek prospective modification.’ ” (Stover v. Bruntz (2017) 12
Cal.App.5th 19, 26 (Stover), quoting In re Marriage of Tavares (2007) 151 Cal.App.4th
620, 625–626 (Tavares).) Numerous statutory provisions state that a court may not
retroactively modify a child support order for payments that have already accrued.
       For example, section 3603 states that a support order “may be modified or
terminated at any time except as to an amount that accrued before the date of the filing of
the notice of motion or order to show cause to modify or terminate.” (§ 3603, italics
added.) Similarly, section 3653, subdivision (a), states that “[a]n order modifying or
terminating a support order may be made retroactive to the date of the filing of the notice
of motion or order to show cause to modify or terminate, or to any subsequent date.”
(Italics added.) Section 3651 also mandates that a support order “may not be modified or
terminated as to an amount that accrued before the date of the filing of the notice of
motion or order to show cause to modify or terminate.” (§ 3651, subd. (c)(1).) Finally,
section 3692 provides that “a support order may not be set aside simply because the court
finds that it was inequitable when made, nor simply because subsequent circumstances
caused the support ordered to become excessive or inadequate.”
       Taken together, these statutory provisions divest the trial court of “ ‘discretion to
absolve an obligor of support arrearages, or interest thereon.’ ” (Stover, supra, 12
Cal.App.5th at p. 26, quoting Tavares, supra, 151 Cal.App.4th at p. 626.) Therefore, a
trial court acts “in excess of the court’s jurisdiction” if it modifies support retroactive to
any time before the filing of an obligor’s modification motion. (Stover, at pp. 26–27.)
       “That the court label[s] the adjustment a ‘credit’ rather than a retroactive
modification is of no moment. It is the effect of the order that is paramount. (See
e.g., Gruen, supra, 191 Cal.App.4th at p. 640 [“ ‘regardless of the court’s intent or how it
                                                   9
labeled the [order], retroactive modification is forbidden’ ”]; Tavares, supra, 151
Cal.App.4th at p. 626 [“ ‘trial court was not required to countenance father’s disguised
attempts at a prohibited retroactive modification of support’ where he claimed he did not
wish to ‘set aside’ prior order but that was ‘precisely the effect of his proposal for an
accounting and recalculation of arrearages’ ”].)” (Stover, supra, 12 Cal.App.5th at p. 27.)
       Moreover, “notwithstanding changed circumstances, or a claimed lack of clarity in
a court’s order assessing child support arrearages, courts have no authority to waive or
forgive interest accrued on past-due child support amounts, just as courts cannot
retroactively modify or terminate the arrearages.” (In re Marriage of Hubner (2004) 124
Cal.App.4th 1082, 1089.) As we previously held in our 2003 decision in Wilson, a trial
court lacks the equitable power to retroactively modify accrued child support based on
the obligor’s prior incarceration. (Wilson, supra, 111 Cal.App.4th at p. 1324.)
       Applying these well-established principles, we conclude the trial court erred in its
February 1, 2016 order. There is no dispute that the 1995 support order was effective
when made, that it followed proceedings at which father was involved, and that thereafter
father never filed any motion to quash, terminate, or modify the order. It was not until
2015, and after the Department filed its own motion to enforce child support, that father
first raised his prior incarceration. The trial court directed father not to file a motion to
adjust arrears; instead, the trial court sua sponte ordered the Department to recalculate the
arrears owed by father for the period father had been incarcerated.
       Whether treated as a motion by father or a sua sponte motion by the trial court, the
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. (Stover,
supra, 12 Cal.App.5th at p. 26.) 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.


                                                  10
       It is true that, as we recognized in Wilson, a trial court has some “equitable powers
regarding the enforcement of the judgment.” (Wilson, supra, 111 Cal.App.4th at
p. 1326.) Section 290—which the trial court explicitly relied on in its February 2016
order at issue here—states that “[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.” (§ 290.)
       Under section 290, the trial court has “broad” discretion to fashion orders
enforcing family law judgments. (Cal-Western Reconveyance Corp. v. Reed (2007) 152
Cal.App.4th 1308, 1318.) However, in exercising that discretion, a trial court may not
ignore express statutory requirements. (Ibid.) Although a trial court may “determine a
parent has satisfied his or her support obligation in a manner other than direct financial
payments” (Tavares, supra, 151 Cal.App.4th at p. 626) or credit the surplus to arrears
“where a parent has made payments beyond those ordered,” (ibid.) “a trial court has no
discretion to absolve an obligor of support arrearages, or interest thereon.” (Ibid.)
       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. In In re Marriage of Everett (1990) 220
Cal.App.3d 846, the Court of Appeal held that a trial court had the discretion to order
husband to pay down arrears at the rate of $35 per month, as this action was “not a
retroactive modification of the arrears but rather an exercise of the court’s equitable
discretion to enforce its orders.” (Id. at pp. 854–855 [relying on former Civ. Code,
§ 4380, the precursor to § 290].) In so holding, the court based this conclusion on the
fact that “[t]he order does not operate to forgive or compromise the outstanding debt nor
does it preclude future modification or future enforcement efforts by way of execution,
                                                 11
interception and the like.” (Marriage of Everett, at p. 855, italics added.) In short, even
assuming the trial court’s ruling here was purely a matter of enforcement, the trial court
abused its discretion by effectively waiving the arrears father accrued during his
incarceration instead of merely adjusting the payment schedule to account for father’s
accumulated debt.
       Although courts have held that “it is within the court’s equitable power to deny
enforcement of the arrears on equitable grounds under certain circumstances,” those
circumstances are limited to instances in which the parent has otherwise contributed to
the care of the child. (In re Marriage of Wilson (2016) 4 Cal.App.5th 1011, 1016.) For
example, in Marriage of Wilson, the court discussed a line of cases that determined a
court could deny enforcement of arrears where “the parent who was obligated to pay
child support had actually cared for the child in his or her own home.” (Ibid.) The court
addressed a situation where the child had lived with father’s parents and father had
provided some financial support to them. The court held “in the unusual circumstances
of this case” the trial court should consider whether it would be inequitable to enforce
some or all of the child support order to the extent it applied to periods where the child
lived with grandparents. (Id. at p. 1018.) In contrast to these cases where the parent
provided some assistance during the relevant period to the child, we have found no
support for the application of the equitable power to deny enforcement of child support
payments because the obligor was incarcerated.
       There is no evidence in this case that father discharged any of his financial
obligations to mother while in prison. To the contrary, the record reflects that, through
no fault of mother, father was incarcerated for a lengthy period of time during which he
accumulated significant arrears and interest for unpaid child support. Mother, on the
other hand, worked several jobs to support child. Further, father did not seek to adjust his
child support payments until years after he was released from prison. These


                                                 12
circumstances do not fall under the limited equitable discretion of the court to deny
enforcement of arrears pursuant to section 290.
       We recognize that the Legislature in 2010 and 2015 enacted statutes that address
the “suspension” of child support for incarcerated parents in certain circumstances.6
However, those statutes do not assist father because they do not apply to orders issued
before 2011. Former section 4007.5, which was enacted in 2010 and expired on July 1,
2015, provided that the obligation to pay support “shall be suspended for any period
exceeding 90 consecutive days in which the person ordered to pay support is incarcerated
or involuntarily institutionalized, unless the obligor has the means to pay support while
incarcerated or involuntarily institutionalized.” This prior statute, however, would have
afforded father no relief from the 1995 support order, because it only applied “to all child
support orders and modifications issued on or after July 1, 2011.” (Former § 4007.5,
subd. (g).) Current section 4007.5 also has no retroactive effect and therefore does not
apply to a support order issued in 1995. (§ 4007.5, subd. (f); County of San Diego
Department of Child Support Services v. C.P. (2019) 34 Cal.App.5th 1, 8–9.)
                                     III. DISPOSITION
       The February 1, 2016 order is reversed. The trial court is directed to enter a new
order that reinstates the arrears suspended in its February 1, 2016 order. Because G.S.
did not appear in this appeal, the Department shall bear its own costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(5).)


       6
         Under the prior statute in effect from 2011 to June 30, 2015, “suspend” meant
“the child support order is modified and set to zero dollars ($0) for the period in which
the obligor is incarcerated or involuntarily institutionalized.” (Former § 4007.5, subd.
(f).) The current statute defines “suspend” as “the payment due on the current child
support order, an arrears payment on a preexisting arrears balance, or interest on arrears
created during a qualifying period of incarceration pursuant to this section is, by
operation of law, set to zero dollars ($0) for the period in which the person owing support
is incarcerated or involuntarily institutionalized.” (§ 4007.5, subd. (e)(2).)

                                                  13
______________________________________
                                          DANNER, J.




WE CONCUR:




____________________________________
      MIHARA, ACTING, P. J.




____________________________________
      GROVER, J.




Santa Clara County DCSS v. S.C., et al.
H045093
     Filed 8/9/19

                        CERTIFIED FOR PUBLICATION




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA


                              SIXTH APPELLATE DISTRICT




     S.C.,                                         H045093
                                                   (Santa Clara County
             Plaintiff and Respondent,             Super. Ct. No. 1-95-CP-
                                         004066)
             v.


     G.S.,


             Defendant and Respondent;


     SANTA CLARA COUNTY
DEPARTMENT OF CHILD SUPPORT
SERVICES,


             Intervenor and Appellant.




                                          15
       BY THE COURT:

       The written opinion which was filed on July 12, 2019, has now been certified for
publication pursuant to rule 8.1105(b) of the California Rules of Court, and it is therefore
ordered that the opinion be published in the official reports.




                                                                     Danner, J.




                                                                     Mihara, Acting P.J.




                                                                     Grover, J.




                                                    16
      Trial Court:                    Santa Clara County Superior Court
                                      Superior Court No. 1-95-CP-004066

      Trial Judge:                    Hon. Irwin Joseph

       Counsel for
Intervenor/Appellant:                 Xavier Becerra, Attorney General
                                      Julie Weng-Gutierrez, Senior Assistant
                                Attorney General
                                      Linda M. Gonzalez, Supervising Deputy
                                Attorney General
                                      Ricardo Enriquez, Deputy Attorney General

      Counsel for
      Plaintiff and                   No appearance
Respondent:
      Counsel for
      Defendant and                   No appearance
Respondent:




      Santa Clara County DCSS v. S.C., et al.
      H045093
