Filed 8/25/20

                         CERTIFIED FOR PUBLICATION

       IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FIRST APPELLATE DISTRICT

                               DIVISION FOUR


 In re the Marriage of ANA and
 CARL SIVA.
 ANA MARIA PALOMARIA
 SIVA,
           Appellant,                 A157554

 v.                                   (Alameda County
 CARL RALPH SIVA,                     Super. Ct. No. HF17869391)
           Respondent.


       This appeal arises from an order awarding a credit under Jackson v.
Jackson (1975) 51 Cal.App.3d 363 (Jackson)1 for child support that
respondent paid to petitioner for approximately 10 months while the parties’
daughter lived full-time with respondent. Petitioner argues that the trial
court impermissibly modified the parties’ child support order retroactively.
She also challenges the denial of her request for attorney fees and costs as




       1Under Jackson, a court has discretion to give credits against child
support arrearages where the obligor has satisfied his or her child support
obligation by taking physical custody of the supported child. (Jackson, supra,
51 Cal.App.3d at p. 368.) Courts now refer to these types of credits as
“Jackson credits.” (Helgestad v. Vargas (2014) 231 Cal.App.4th 719, 721–
722.)


                                       1
sanctions under Family Code2 section 271. We find that the court had
discretion to allow a credit for respondent’s double-satisfaction of his child
support obligations, and the court did not err by denying sanctions. We
affirm.
                               BACKGROUND
      Petitioner petitioned to dissolve her marriage to respondent in July
2017. The parties had one teenage child, S.S. Contentious dissolution
proceedings ensued3 during which S.S. experienced serious issues. At
respondent’s request, the court appointed counsel for S.S.
      In January 2018, the trial court incorporated the parties’ binding
Marital Settlement Agreement (MSA) into a judgment. The judgment
provided for joint legal and physical custody of S.S., with mother having a 72
percent and father a 28 percent timeshare. S.S. was able to spend time at
either parent’s residence at her discretion, and respondent was ordered to
pay $1,700 in monthly child support.
      On April 10, 2018, S.S. left petitioner’s home. S.S. lived full-time with
respondent thereafter. In May 2018, petitioner filed an income withholding
order for child support.
      In July 2018, the trial court held a custody review hearing. Respondent
requested that the court grant him full physical custody of S.S., allowing
weekly visits with petitioner at S.S.’s discretion; he further asked the court to
order reunification therapy to repair the mother-daughter relationship. In
addition, he requested appointment of a special master to make


      2 All further statutory references are to the Family Code unless
otherwise specified.
      3 The parties engaged in extensive litigation in the dissolution and

related proceedings, but we do not discuss facts relating to those proceedings
as they are unnecessary to the resolution of this appeal.

                                        2
determinations regarding parental decision-making, such as whether S.S.
could work. In her statement to the court, petitioner told the court that S.S.
had serious problems requiring intervention, requested that S.S. be
prohibited from obtaining a driver’s license or working, and sought to require
S.S. to return to petitioner’s care. At the hearing, counsel for S.S. and
respondent reported that S.S. was doing well living with respondent. Among
other things, the court ordered petitioner and S.S. to start reunification
therapy, authorized S.S. to continue working, denied petitioner’s requests to
require S.S. to return to her physical custody and to prohibit S.S. from
obtaining a learning permit or driver’s license, and, because petitioner
requested a long cause hearing, the court set a custody trial for January
2019.
        To allow S.S. and petitioner to participate in reunification therapy, the
parties stipulated to a continuance of the custody trial to June 2019. At a
review hearing in January 2019, respondent asked the court to vacate the
custody trial date and endorse his full-time physical custody of S.S. because
reunification therapy had been unsuccessful, or, in the alternative, to order a
full custody evaluation. Petitioner urged the court to set a custody trial date.
The court continued the custody trial date, ordered a full custody evaluation,
and set a June 2019 hearing date for the receipt of the evaluation.
        On February 27, 2019, respondent filed a request for an order
modifying child support, ordering Jackson credits and reimbursements for
expenditures related to S.S., and awarding attorney fees and costs. He
requested that he be permitted to cease paying child support, and that
petitioner be ordered to pay him (1) $812 in monthly child support retroactive
to the filing of his request for modification, and (2) $18,133 in Jackson credits
for the child support he paid from April 11, 2018 (when S.S. began living with



                                         3
him) to the date of his February 27, 2019 request for orders. Respondent
explained that he had not filed his request earlier because he was focused on
stabilizing S.S. Respondent sought sanctions under section 271. Petitioner
opposed and also sought sanctions under section 271.
      After hearing argument and taking the matter under submission, the
trial court granted respondent’s request to modify child support. Because
petitioner had been laid off around the time of the March 2019 hearing, the
court set a future review hearing, and, in the interim, ordered that neither
party would pay child support. Regarding the Jackson credit, the court found
that, “[w]hile not a parallel set of facts, the same reasoning applies in this
case as it does in Jackson v. Jackson 51 Cal.App.3d 363 and its progeny,” and
“[g]iven the equitable considerations,” the trial court ordered petitioner to
pay respondent $18,133 in $1,000 monthly installments until paid in full.
The trial court denied each party’s request for sanctions.4
                                 DISCUSSION
A. The “Jackson” Credit
      Child support orders and orders the trial court deems necessary to
enforce its child support orders are generally reviewed for abuse of discretion.
(In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282; § 2905.) But
California’s child support statutes and the purposes of the law regarding


      4 The trial court granted respondent’s requests for reimbursement for
health care, reunification therapy, and extra-curricular expenditures related
to S.S. Appellant challenges only the trial court’s order with respect to the
Jackson credit and sanctions, so the reimbursements and the court’s order
modifying child support are not at issue in this appeal.
      5 Section 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.”


                                        4
child support limit the trial court’s exercise of discretion. (Cheriton, p. 283.)
Here, where there are no facts in dispute, we review de novo the legal
questions of whether the trial court had discretion to give a Jackson credit
and whether it acted in excess of its jurisdiction and in violation of child
support statutes. (See S.C. v. G.S. (2019) 38 Cal.App.5th 591, 598 (S.C.).)
   1. The Trial Court’s Order Did Not Violate the Statutory
      Prohibition on Retroactive Modification of Child Support
      Petitioner first argues that the trial court acted in excess of its
jurisdiction and violated statutory prohibitions by retroactively modifying a
child support order for the roughly ten months that predated respondent’s
request for modification. She invokes a number of statutes prohibiting
retroactive modification. “An 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[.]”
(§ 3653, subd. (a).) “[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).)6
Section 3603 states, “An order made pursuant to this chapter 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.” And section 3692 provides, “Notwithstanding any
other provision of this article, or any other law, 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.” We do not believe the trial court’s order


      6Sections 3651 and 3653 contain some exceptions not relevant here.
(§§ 3651, subds. (b), (c)(1)–(2); 3653, subd. (a).)

                                        5
recognizing that respondent doubly satisfied his child support obligation—by
paying child support while maintaining full physical custody of S.S.—violated
these statutes.
      Starting with Jackson, California courts have recognized that a judicial
determination that an obligor discharged his or her child support obligation
for the period during which the supported child lived with the obligor does
not run afoul of the statutory prohibition on retroactive modification. In
Jackson, the parties divorced, the mother received custody of their daughter,
and the mother subsequently let the daughter live with the father. When the
mother obtained a writ of execution for child support arrearages for the time
when the daughter lived with the father, the father moved to quash the writ
or, alternatively, to be reimbursed for money he spent on his daughter.
(Jackson, supra, 51 Cal.App.3d at p. 365.) The trial court found the father
was attempting to retroactively modify a child support order and denied his
request. (Id. at pp. 365–366.) The appellate court disagreed, reasoning that
all child support orders are an exercise of the trial court’s “equitable power
and are designed to compel satisfaction of the child support obligation” which
is owed to the child, not the obligee parent. (Id. at pp. 366–367.) Where the
father provided the child a home and expended amounts in excess of the
court-ordered child support, the trial court would have been well within its
discretion in quashing the writ or permitting partial enforcement “on the
basis that [the father] had directly discharged his obligation or on the basis of
equitable considerations.” (Id. at pp. 368–369.)
      In In re Marriage of Trainotti (1989) 212 Cal.App.3d 1072, 1075
(Trainotti), the appellate court reversed the trial court’s finding that the
statutory ban on retroactive child support modification prevented it from
considering whether to grant the father credit for child support for the time



                                        6
during which his child lived with him.7 The mother had been granted
custody of the parties’ son, but he moved in with the father. The father
attempted to get the mother to stipulate to entry of an order changing
custody and child support on several occasions, but she refused. (Id. at
p. 1073.) After the father sought modification of the custody and support
orders and subsequently attempted to get the mother to stipulate to the
change of custody and support, the mother initiated a contempt proceeding
for unpaid child support. The parties ultimately stipulated to the custody
change and dismissed the contempt proceeding; however, they asked the trial
court to determine arrearages. For the time period during which the child
lived with his father, the trial court “should have considered whether the
debtor had satisfied or otherwise discharged the obligation imposed by the
original order. [Citations].” (Id. at p. 1075.) “Such consideration does not
violate the prohibition against retroactive modification of the support award.”
(Ibid.; In re Marriage of Okum (1987) 195 Cal.App.3d 176, 182 [following
Jackson and finding the trial court had discretion to allow credits against
arrearages as to parent who had sole physical custody of one of parties’ two
children during period in question].)
      More recently, in Helgestad v. Vargas (2014) 231 Cal.App.4th 719
(Helgestad), the appellate court held that Jackson credits were available in a
paternity action for the period during which the father and mother lived
together and attempted reconciliation if the obligor established the provision
of actual in-kind or in-the-home support. The court reviewed the equitable


      7 At the time, this prohibition was set forth in former Civil Code section
4700, subdivision (a)(1), which provided in pertinent part: “Any order for
child support may be modified or revoked as the court may deem necessary,
except as to any amount that may have accrued prior to the date of the filing
of the notice of motion or order to show cause to modify or revoke.”

                                        7
theory supporting the availability of credits in Jackson and its progeny, as
well as theories underlying out-of-state decisions allowing and disallowing
similar credits. (Id. at pp. 723–732.) The court endorsed the availability of a
credit based on equitable concerns and rejected what it deemed the “ ‘pure’
anticredit case[s]” from other states that categorically refused credit based on
statutes prohibiting retroactive modification. (Id. at pp. 730–733.)
“[M]echanical application of the no-retroactive-modification rule seems to us
inconsistent with the entire Jackson line. ‘The trial court may determine
that nothing is owed for child support amounts that accrued during the
period the supported child was living with the obligor parent. This does not
affect an improper “retroactive modification” because the arrearages are
deemed satisfied by the obligor’s direct provision for the child’s needs during
the applicable period of time.’ [Citations]” (Id. at p. 733, italics omitted; In re
Marriage of Wilson (2016) 4 Cal.App.5th 1011, 1017 (Wilson) [recognizing
Jackson’s theory “that a parent can discharge the child support obligation by
caring for the child at the parent’s own expense” and remanding for the trial
court to consider a setoff against arrearages for the period during which the
child lived with grandparents and the father provided support].)
      Applying the theory behind Jackson and its progeny here, respondent
in essence satisfied his child support obligation twice for the time period
commencing when S.S. began living with him full-time and ending when he
filed his request for child support modification. Recognition of this double
satisfaction did not violate prohibitions on retroactive termination or
modification of child support orders under sections 3651, 3653, or 3603, and,
for the same reasons, did not impermissibly set aside a child support order
under section 3692. (Trainotti, supra, 212 Cal.App.3d at p. 1075; Helgestad,
supra, 231 Cal.App.4th at p. 733.)



                                        8
      The cases petitioner cites in support of her retroactive modification
argument are distinguishable. In none of those cases did the obligor take
custody of his child and fulfill a support obligation. Rather, in each, the
obligor sought to eliminate some part of his obligation and accrued child
support arrearages. (Stover v. Bruntz (2017) 12 Cal.App.5th 19, 25–27
[reversing an order subtracting $441 monthly from child support arrearages
for the time the obligee did not have the supported child in licensed child
care]; In re Marriage of Sabine & Toshio M. (2007) 153 Cal.App.4th 1203,
1217 [finding unenforceable the parties’ postdissolution agreement waiving
thousands of dollars of undisputed accrued child support arrearages]; In re
Marriage of Gong & Kwong (2008) 163 Cal.App.4th 510, 518 [rejecting the
obligor’s interpretation of an order determining arrearages that would
eliminate 9 months of accrued child support and interest and dismissing the
appeal as frivolous]; County of Santa Clara v. Wilson (2003) 111 Cal.App.4th
1324, 1325–1326 [reversing trial court’s order eliminating months of child
support arrearages for the time the obligor was imprisoned]; S.C., supra,
38 Cal.App.5th at pp. 593–594, 601 [finding same and contrasting Jackson
and its progeny where the parent provided support to the child during the
relevant period by caring for him or her]8.)
   2. The Trial Court Had Discretion to Give a Jackson Credit
      Petitioner next argues that Jackson credits could not be given in this
case because they are only available in collection proceedings such as those in
Jackson where the obligee obtained a writ of execution to recover child
support arrearages. The parties have not cited, nor have we found, a case


      8  Appellant concedes that respondent had 100 percent physical custody
of S.S. from April 10, 2018 through the date of his February 2019 request for
orders, and she has never contested respondent’s statement that he provided
actual in-home support to S.S.

                                        9
allowing a Jackson credit in circumstances identical to those before us.
Nevertheless, examination of pertinent authority leads us to conclude that
the trial court’s discretion to recognize Jackson credits is not confined to
proceedings where the obligee seeks to collect on arrearages.
      Courts have recognized the availability of Jackson and other child
support credits outside of collection proceedings, relying on their inherent
authority to determine what is owed under their support orders and the
manner in which these orders are enforced. (See Trainotti, supra,
212 Cal.App.3d at p. 1075 [recognizing availability of Jackson credits in an
action denominated as a “modification proceeding” where the parties sought a
determination of arrearages and “the court’s jurisdiction was invoked to
enforce the terms of the original child support order”]; Helgestad, supra,
231 Cal.App.4th at p. 722 [recognized the availability of Jackson credits in
response to the obligor’s motion to determine arrearages]; County of Shasta v.
Smith (1995) 38 Cal.App.4th 329, 334–335 (Smith) [even absent an
enforcement proceeding, the court has inherent authority to determine the
amount of its judgment, so it could decide the obligor’s motion to determine
arrearages, including his entitlement to credits from the alleged discharge of
his support obligation]9.)
      There appear to be few cases addressing requests for child support
credits in the absence of arrearages, but we have found two that involve
requests for a credit in the form of a refund or future offset. In In re
Marriage of Starr (2010) 189 Cal.App.4th 277, 290–291, the obligor filed a
request seeking modification of child support and a refund of overpaid child



      9 In Smith, the obligor claimed he had discharged his child support
obligations based on wage garnishments with which his employer had
allegedly absconded. (Smith, supra, 38 Cal.App.4th at p. 332.)

                                       10
support after discovering that the parties’ stipulated child support formula
was based on the erroneous assumption that the parties had four children,
when, in fact, they had two. The trial court first modified the support order
to reflect support for the parties’ two children, but, after holding a trial on the
refund issue, it found the modified child support was inadequate, raised the
father’s support, and denied a refund. (Id. at p. 290.) The appellate court
affirmed, finding that the trial court had discretion to grant or deny the
request for a refund based on its equitable discretion to provide a credit
against arrearages for overpayment of child support.10 (Id. at pp. 290–291
[following In re Marriage of Peet (1978) 84 Cal.App.3d 974, 977–979 (Peet)].)
      More recently, Y.H. v. M.H. (2018) 25 Cal.App.5th 300 (Y.H.),
recognized the trial court’s ability to provide a credit for overpaid child
support, in the form of a refund or future offset at the trial court’s discretion,
despite the absence of arrearages. (Id. at p. 302 & fn. 2.) In Y.H., the father
paid full child support for six years while his application for social security
disability (SSDI) benefits was pending; when the benefits were approved, the
mother received a lump sum payment for past derivative SSDI benefits on
behalf of the parties’ daughter. The father then filed a request for an order



      10 The dissent characterizes Starr’s endorsement of the trial court’s
discretion to order a refund of overpaid child support as little more than
dicta. (Dissent, p. 7.) We disagree. Starr’s holding with respect to this issue
has two components. First, the appellate court found that the trial court had
discretion to decide the request for a refund under Peet, supra, 84 Cal.App.3d
at pp. 977–979. (Starr, supra, 189 Cal.App.4th at p. 290.) Describing Peet,
the court stated, “Peet involved a spouse’s claim for reimbursement of
voluntary overpayments [of child support], which the trial court granted. The
Court of Appeal affirmed, holding that the trial court had discretion in such
matters. We hold that Peet is applicable here.” (Ibid.) Second, the court held
that the trial court did not abuse its discretion in the circumstances of the
case by declining the father’s request for reimbursement. (Id. at p. 291.)

                                        11
granting a credit for overpaid child support. (Ibid.) The trial court found the
SSDI lump sum payment had to be credited against the father’s child support
obligation under section 4504, subdivision (b)11, and it ordered the benefits to
be retroactively applied first against the father’s obligation for the months
covered by the lump sum payment before applying the father’s child support
payments; any payment exceeding the child support obligation amount
“would be subject to an offset or a refund.” (Id. at p. 304.)
      The appellate court affirmed, holding that section 4504, subdivision (b)
required the derivative SSDI benefits received by obligor’s child to be credited
against the obligor’s child support obligation, although the statute did not
address how to effect a credit where no arrearages existed. (Y.H., supra,
25 Cal.App.5th at pp. 305–307.) It further observed that not allowing a
retroactive credit would discourage the obligor from making support
payments while seeking benefits and inequitably require him to overpay child
support once the benefits materialized. (Id. at pp. 310–311 and fn. 8.) The
appellate court then approved the trial court’s method of implementing the
credit: “The [trial] court met the statutory mandate by ordering retroactive
child support credit for the months covered by the lump-sum payment for
past-due benefits. This fell within its broad enforcement power to determine


      11 This subdivision provides, “If the court has ordered a noncustodial
parent to pay for the support of a child, payments for the support of the child
made by the federal government pursuant to the Social Security Act or
Railroad Retirement Act, or by the Department of Veterans Affairs because of
the retirement or disability of the noncustodial parent and received by the
custodial parent or other child support obligee shall be credited toward the
amount ordered by the court to be paid by the noncustodial parent for
support of the child unless the payments made by the federal government
were taken into consideration by the court in determining the amount of
support to be paid. Any payments shall be credited in the order set forth in
Section 695.221 of the Code of Civil Procedure.”

                                       12
the manner in which its child support order is enforced. (§ 290.) ‘[T]he trial
court may give credit for past overpayment (In re Marriage of Peet, [supra,]
84 Cal.App.3d [at pp.] 980–981)’ . . . ‘or take into consideration “whether the
debtor had satisfied or otherwise discharged the obligation imposed by the
original order.” ’ (Keith G. v. Suzanne H. (1998) 62 Cal.App.4th 853, 858–
859.) That is precisely what the court did.” (Y.H., at p. 307.)
      Turning to the case at hand, the trial court’s order reflects a recognition
that respondent doubly satisfied his child support obligation by caring for
S.S. when she lived with him full-time and through his support payments.
Effectively, he double paid. Once the court recognized the double-
satisfaction, similar to Y.H., the court’s election to give a credit in the form of
a refund where no arrearages existed “fell within its broad enforcement
power to determine the manner in which its child support order is enforced.”
(Y.H., supra, 25 Cal.App.5th at p. 307.) We acknowledge that the statute as
interpreted in Y.H. required the SSDI benefits to be credited against the
obligor’s child support obligation whereas Jackson credits are discretionary.
However, as we previously found herein, the child support statutes on which
petitioner relies do not prohibit a credit.
      “Family law court is a court of equity.” (In re Marriage of Calcaterra &
Badakhsh (2005) 132 Cal.App.4th 28, 38.) Although a court cannot
transgress statutory mandates, family law proceedings “ ‘are equitable
proceedings in which the court must have the ability to exercise discretion to
achieve fairness and equity.’ ” (In re Marriage of Boswell (2014)
225 Cal.App.4th 1172, 1175.) Equity would not be served by holding that the
trial court lacked discretion to give a credit in this case when it indisputably
could have exercised such discretion under Jackson had respondent
requested a determination of arrearages after not paying the court-ordered



                                        13
child support. Such a ruling would effectively punish respondent for
complying with the child support order while simultaneously providing a
home to S.S.
      Our dissenting colleague believes that the trial court’s order
undermines the “equitable role that Jackson credits normally fulfill.”
(Dissent, p. 6.) The dissent states that, although an obligee parent is entitled
to seek enforcement of unpaid child support when the obligor parent takes
custody of the child, where the obligee parent agrees that non-payment is
equitable under the circumstances and declines to seek enforcement until
many months have passed, Jackson credits are available to the obligor to
defeat such a “post hoc ‘gotcha’ ” motion. (Dissent, p. 6, citing Helgestad,
supra, 231 Cal.App.4th at p. 733.) In contrast, when the obligor parent pays
child support while providing in-home support and then requests a court-
ordered refund, the dissent characterizes the obligor’s request as a “post hoc
‘gotcha’ ” because the obligee had no reason to believe she was not entitled to
spend the child support that “was lawfully hers.” (Dissent, pp. 6–7.)
      We disagree. The dissent states that money paid pursuant to a child
support order is lawfully that of the obligee parent, implying that the support
obligation runs to the obligee parent. (Dissent, pp. 6–7.) But it is well
established that the support obligation is owed to the child, not to the parent
identified in the support order as the recipient of child support payments.
(Jackson, supra, 51 Cal.App.3d at p. 367; Williams v. Williams (1970)
8 Cal.App.3d 636, 640.) “In essence, the parent, to whom such support is
paid, is but a mere conduit for the disbursement of that support.” (Williams,
at p. 640.) When a supported child moves completely out of the obligee
parent’s home to live with the obligor parent and the obligor provides in-
home child support, the obligee parent cannot be said to be unaware that he



                                       14
or she is no longer acting as a conduit for the disbursement of child support to
a child who no longer lives with him or her.
      Our dissenting colleague also implicitly equates a refund of support
with a reduction in the amount of support the trial court previously ordered.
(Dissent, pp. 1–2.) They are not the same. The court may never reduce
support payable prior to the date the obligor files a motion requesting a
reduction. But as Jackson and its progeny recognized, acknowledging the
obligor parent’s satisfaction of the support obligation by providing in-home
support for the supported child does not reduce, enlarge, or modify the
support obligation. Where, as here, the support obligation has been satisfied
twice, a refund may or may not be ordered depending on the circumstances.
      Although we uphold the trial court’s order based on the record in this
case, nothing in this opinion should be construed to require a court to award a
Jackson credit in similar circumstances. The determination of whether to
give a Jackson credit is left to the sound discretion of the trial judge, who
must weigh the circumstances and the equities in each case. (See Wilson,
supra, 4 Cal.App.5th at p. 1018 [directing the trial court to consider all
relevant factors when exercising its discretion to determine whether to award
a Jackson credit].) It is possible that a trial court may determine that the
equities weigh against recognizing a full or partial credit if, for example, the
obligee establishes that he or she paid certain fixed child support costs, the
determination of when a child was in the custody of the obligor parent
becomes unduly complicated or protracted, or the granting of a credit is not in
the best interests of the child. The court may also consider factors such as
the length and explanation for the obligor parent’s delay in requesting a
refund, the obligee parent’s use of the payments (i.e., whether or not for the
benefit of the minor), and the relative hardships of requiring or refusing a



                                       15
refund. We are not called upon to decide whether the trial court abused its
discretion in this case because petitioner does not argue that, if the trial court
had discretion to award a Jackson credit, it abused its discretion in doing so.
B. Attorney Fees and Costs
      Petitioner seeks to overturn the trial court’s order denying what she
contends were requests for need-based attorney fees and costs under section
2030 and sanctions under section 271. Under an abuse of discretion
standard, where we construe all the evidence and indulge all reasonable
inferences in support of the trial court’s order, we find no error. (See
Marriage of Fong (2011) 193 Cal.App.4th 278, 291 [a section 271 order is
reviewed for abuse of discretion]; In re Marriage of M.A. & M.A. (2015)
234 Cal.App.4th 894, 896 [same as to orders under section 2030].)
      Under sections 2030 and 2032, the trial court may make a need-based
award of attorney fees and costs where the making of the award and its
amount are just and reasonable given the relative circumstances of the
parties. (§§ 2030, 2032, subd. (a).) But petitioner did not request need-based
attorney fees and costs below, and we decline to consider her request for the
first time on appeal. (Sea & Sage Audubon Society, Inc. v. Planning Com.
(1983) 34 Cal.3d 412, 417 [issues not raised in the trial court cannot be raised
for the first time on appeal].)
      Under section 271, a “court may base an award of attorney’s fees and
costs on the extent to which the conduct of each party or attorney furthers or
frustrates the policy of the law to promote settlement of litigation and, where
possible, to reduce the cost of litigation by encouraging cooperation between
the parties and attorneys.” Petitioner seeks to overturn the court’s denial of
sanctions because she is not as financially secure as respondent and because
respondent filed a motion requesting a Jackson credit. However, the



                                       16
financial need of the party seeking sanctions is irrelevant to a section 271
request. (Hogoboom et al., Cal. Practice Guide: Family Law (The Rutter
Group 2019) ¶ 14:235.) Further, while there was no authority applying
Jackson in circumstances identical to this case, the court did not abuse its
discretion in refusing the sanctions request, as respondent’s motion had a
sound factual and legal basis. Finally, petitioner does not support her
argument with citations to the record or attempt to establish how, apart from
filing the request for a credit, respondent frustrated the promotion of
settlement or increased litigation costs.
                                DISPOSITION
      The trial court’s order is affirmed.




                                             _________________________
                                             BROWN, J.


I CONCUR:



_________________________
POLLAK, P. J.




                                       17
TUCHER, J., Dissenting:
      I respectfully dissent from that portion of the court’s opinion that
extends the concept of a “Jackson credit” to authorize, for the first time, what
might instead be called a “Jackson refund.” (See Jackson v. Jackson (1975)
51 Cal.App.3d 363 (Jackson).) Here, the trial court ordered Ms. Siva
(Mother) to refund child support she received for a period of months before
anyone filed a request to modify the parties’ permanent child support order.
If Mr. Siva (Father) had ceased paying child support when their daughter
moved into his home, the trial court could have awarded a Jackson credit
against the resulting arrearages, but instead Father continued paying and
only later sought to require Mother to refund the money. I view the trial
court’s order that Mother repay Father more than $18,000 in child support—
amounts she lawfully received at a time when no request for orders was
pending—as contrary to law. Statutes governing child support allow courts
discretion in enforcing a child support order, which discretion authorizes
Jackson credits. But the statutes do not allow retroactive modification of a
child support order during a period before any petition to modify is filed,
which in my view precludes the Jackson refund ordered here.
      Determination of child support “ ‘is a highly regulated area of the law,
and the only discretion a trial court possesses is the discretion provided by
statute or rule.’ ” (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 283
(Cheriton).) “[C]ourts are required to calculate child support in accordance
with the mathematical formula set forth in the statute,” a process so complex
it is usually delegated to a computer. (Id. at p. 284, citing Fam. Code, § 4055;
all undesignated code references are to the Family Code.) Although the
statute refers to the formula as a “guideline” (§ 4055), “adherence to the
guidelines is mandatory, and the trial court may not depart from them except



                                       1
in the special circumstances enumerated in the statutes.” (Cheriton, at
p. 284.)
      State and federal law also constrains courts in modifying a child
support order, once made. The majority’s opinion acknowledges many of
these statutes. For example, section 3653 provides in relevant part: “An
order modifying or terminating a support order may be made retroactive to
the date of filing of the notice of motion or order to show cause to modify or
terminate, or to any subsequent date.” (§ 3653, subd. (a), italics added.) But
“a support order may not be modified or terminated as to an amount that
accrued before the date of the filing of” such papers. (§ 3651, subd. (c)(1).)
Nor may a support order “be set aside . . . simply because subsequent
circumstances caused the support ordered to become excessive.” (§ 3692.)
These statutes implement federal law, which requires each state to “have in
effect laws requiring” that each installment of child support “is (on and after
the date it is due)—[¶](A) a judgment by operation of law, with the full force,
effect, and attributes of a judgment of the State, including the ability to be
enforced, [¶](B) entitled as a judgment to full faith and credit in such State
and in any other State, and [¶](C) not subject to retroactive modification by
such State or by any other State; [¶]except that” a state “may permit
modification with respect to any period during which there is pending a
petition for modification . . . .” (42 U.S.C. § 666, subd. (a), italics added.)
      Although these statutes allow the trial court no discretion retroactively
to modify the child support order for a period when no modification request
was pending, another statute does authorize discretion regarding the
enforcement of such an order. Section 290 provides, in relevant part, that a
child support order or judgment “may be enforced by the court by execution
. . . or contempt, or by any other order as the court in its discretion



                                          2
determines from time to time to be necessary.” (Italics added.) The use of
“may,” as opposed to “shall,” and the explicit reference to judicial “discretion”
combine to empower trial courts to exercise equitable authority in deciding
whether fully to enforce a child support order.
      Jackson and its progeny showcase this equitable discretion in action, in
each case addressing whether to enforce a support order with which the
obligor did not comply. Jackson allows a trial court to quash a writ of
execution for child support arrearages covering a period when the child lived
full time with the obligor parent. (Jackson, supra, 51 Cal.App.3d at pp. 365–
369.) In similar circumstances but a different procedural posture, In re
Marriage of Trainotti (1989) 212 Cal.App.3d 1072, 1075 (Trainotti) allows
judicial discretion in a contempt proceeding for unpaid child support, and
Helgestad v. Vargas (2014) 231 Cal.App.4th 719, 722 (Helgestad) allows
judicial discretion in the determination of post-judgment arrearages. These
cases, and the other cases in the Jackson line on which the majority relies, all
address the extent to which a court will enforce an existing child support
order, requiring payment of arrearages accrued while the child lived with the
obligor. The cases give trial courts discretion to decide whether enforcement
of the prior order would be equitable, or whether the obligor parent should
instead be credited with having “directly discharged his obligation.”
(Jackson, supra, at pp. 368–369.) The cases expressly rely on the court’s
discretionary enforcement powers to harmonize Jackson credits with the
statutory proscription on retroactive modification of a support order. (See,
e.g., Helgestad, at p. 733; Trainotti, at p. 1075; Jackson, at p. 368; In re
Marriage of Wilson (2016) 4 Cal.App.5th 1011, 1016 [“it is within the court’s
equitable power to deny enforcement of the arrears on equitable grounds”
where a parent has directly supported the child].)



                                         3
      This case is different. Because Father fully complied with the existing
child support order, there is no issue of enforcement here. Instead, Father’s
request for a refund takes us outside the equitable enforcement powers of the
court and into the arena of a retroactive modification. Father characterizes
the trial court’s order not as retroactively modifying his obligation, but as
“zeroing out” his “required payment for the months he provided in-kind
support,” requiring Mother to “pay [him] back for overages.” This argument
ignores that to reduce $18,000 in previously ordered child support payments
to zero is to “modif[y] or terminate[]” Father’s obligation “as to an amount
that accrued before” Father filed his request for orders. (§ 3651, subd. (c)(1).)
And to order Mother to pay back this money—all of which she was entitled to
under the court’s order when she received it—is therefore an act beyond the
jurisdiction of the trial court. (S.C. v. G.S (2019) 38 Cal.App.5th 591, 599
[“trial court acts ‘in excess of the court’s jurisdiction’ if it modifies support
retroactive to any time before the filing of the obligor’s modification motion”];
Stover v. Bruntz (2017) 12 Cal.App.5th 19, 26 [same].) Father’s payments
were not “overages.” They were legal obligations “entitled as a judgment to
full faith and credit in” the courts of this state. (42 U.S.C. § 666, subd. (a);
§ 3653, subd. (a).)
      The majority opinion concludes these statutes and case law pose no bar
to the trial court’s order because, applying “the theory behind Jackson and its
progeny,” Father has effectively double-paid his child support. The majority
appears to recognize that no case has ever awarded Jackson credits in the
absence of arrearages, as the only cases it cites involving requests for “a
refund or future offset” are unrelated to Jackson. (See infra, discussing In re
Marriage of Starr (2010) 189 Cal.App.4th 277 (Starr); Y.H. v. M.H. (2018) 25
Cal.App.5th 300 (Y.H.).) But the majority fails to reckon with the



                                          4
significance of this distinction between addressing enforcement of arrearages
and ordering repayment of monies received. In my view, this difference is
dispositive. If an obligor has not paid amounts previously ordered we are in
the arena of enforcement, where the trial court has statutory authority for
exercising discretion to award an offset. (§ 290.) But if an obligor has paid
all amounts previously ordered, there is no enforcement issue and,
accordingly, no statutory authority for offsetting in-kind contributions toward
support of the child. Father’s obligation to pay Mother may not be
retroactively “set aside,” or zeroed, “simply because subsequent
circumstances caused the support ordered to become excessive.” (§ 3692.)
      One might plausibly ask whether refusing to extend Jackson credits to
affirm a Jackson refund unfairly penalizes Father for timely paying his child
support. I do not think it does. The moment Father came to believe custody
arrangements had sufficiently changed that it was no longer fair for him to
continue paying Mother at the court-ordered level, he could have filed a
Judicial Council form requesting a modification. (See
https://www.courts.ca.gov/1196.htm?rdeLocaleAttr=en [including link to Jud.
Council Form FL-300] [as of July 29, 2020].) The simple act of filing and
serving this form would have put Mother on notice that any further payment
of child support was subject to claw-back, and it would have empowered the
trial court, consistent with sections 3651, 3653, and 3692 and federal law, to
award a refund of child support retroactive to that date. “ ‘The 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, supra, 12 Cal.App.5th at p. 26.)




                                       5
      Extending Jackson credits to allow for Jackson refunds blurs the
Legislature’s bright line. It deprives parents who receive and depend on child
support of the certainty and repose that the statutes’ bright line otherwise
provides. And it undermines the equitable role that Jackson credits normally
fulfill. In the context of a parent who has ceased paying child support
because the child moved into the obligor parent’s home, the obligee parent is
entitled under the existing order to receive such support and can appeal to
the court for enforcement when payments cease. But if the obligee agrees
that non-payment is equitable under the circumstances and declines to seek
enforcement until many months have passed, Jackson credits are available to
the obligor to defeat such a “post hoc ‘gotcha’ ” motion. (Helgestad, supra,
231 Cal.App.4th at p. 733.) A traditional Jackson credit allows the trial court
retroactively to conform enforcement of a child support order to the parties’
self-help approach, under circumstances where neither party had a strong
incentive to go promptly into court petitioning for formal modification.
      This salutary effect of a Jackson credit disappears in the context of a
Jackson refund. Where, as here, the obligor parent continues paying court-
ordered support, the receiving parent has no incentive to seek modification of
the existing order and no reason (unless the obligor parent has filed a request
for modification) to believe she is not entitled to spend the money she
receives. When, months later, the obligor parent requests a court-ordered
refund, this motion is itself a “post hoc ‘gotcha.’ ” If properly restricted to the
enforcement context, the availability of Jackson credits is consistent with the
practical wisdom that a parent who wants a child support order to change
should file papers requesting that change. (See Stover, supra, 12 Cal.App.5th
at p. 26.) But a Jackson refund flies in the face of this rule. Here, both
parties accepted the status quo for eight months, neither party seeking to



                                         6
modify the support order. Then, long after Mother received and likely spent
the child support she had every reason to believe was lawfully hers, the trial
court’s order reached back to unsettle those settled expectations.
      Nothing in the two cases the majority cites regarding child support
refunds or future offsets justifies the conclusion the court reaches here. Starr
affirmed an order denying the obligor parent a refund for child support paid
in excess of the guidelines amount. (Starr, supra, 189 Cal.App.4th at
pp. 290–291.) In a brief discussion at the end of an opinion about other
issues, the Starr court held that the trial court “did not abuse its discretion
by declining [the] request for reimbursement.” (Id. at p. 291.) Any inference
from this ruling that the trial court had authority to have instead ordered a
refund is little more than dictum, unnecessary to the result the court
reached.
      Y.H. is more complicated, but just as unhelpful as support for ordering
a Jackson refund. In Y.H., a disabled veteran who applied for social security
disability (SSDI) benefits waited six years for a decision on his application.
(Y.H., supra, 218 Cal.App.5th at pp. 302–303.) In the meantime, he paid his
court-ordered child support. (Id. at p. 304.) When his benefits were finally
approved, not only did the veteran receive a lump-sum payment of accrued
benefits, but his young daughter received a similar check representing her
derivative SSDI benefits. (Id. at p. 303.) The child’s check was sent to her
mother as custodial parent but was required by statute “to be applied as a
credit to [the] noncustodial parent’s child support obligation.” (Id. at p. 305
[discussing § 4504, subd. (b)].) Section 4504 provides the statutory basis for
awarding a credit, and perhaps a refund of overpaid child support, in a case
like Y.H. (Y.H., at p. 302, fn. 2.), but the code section is specific to “payments
for the support of the child made by the federal government pursuant to the



                                         7
Social Security Act.” (§ 4504, subd. (b).) It offers no statutory support for a
Jackson credit or a Jackson refund. The dispositive difference between Y.H.
and this case is, then, that the child support refund in Y.H. was firmly
anchored in the Legislature’s statutory scheme governing child support,
while the concept of a Jackson refund is not.
      Y.H. is inapposite for policy reasons as well. The Y.H. court was
concerned that denying a credit for lump sum SSDI payments would have the
perverse effect of discouraging an obligor parent who has applied for benefits
from paying his support obligations promptly, thus causing financial harm to
the child. (Y.H., supra, 25 Cal.App.5th at pp. 309–310.) No such concern
exists in the context before us, as there is no risk of financial harm to the
child from the obligor parent fulfilling his support obligations by caring for
the child. Moreover, the obligor parent may immediately seek modification of
child support so as to avoid having to effectively double-pay, unlike a parent
awaiting a decision on SSDI benefits. Any motion brought by a disabled
parent to seek a refund of some portion of a derivative lump-sum benefit
cannot be filed until the check arrives, so it is hardly a “post hoc ‘gotcha’ ”
motion when filed promptly thereafter. Y.H. thus avoids the practical
problems that I fear today’s opinion will cause.
      For good reason, appellate courts may be reluctant to cabin the
discretion of trial courts, but in addressing child support “the only discretion
a trial court possesses is the discretion provided by statute or rule.”
(Cheriton, supra, 92 Cal.App.4th at p. 283.) Because I find no support in
statute or rule for extending Jackson to a case where the obligor parent has
continued paying support without requesting modification of the order, I
conclude the trial court lacked discretionary authority to order




                                         8
reimbursement here. I would reverse with regard to the reimbursement
order and affirm only as to Mother’s motion for attorney’s fees and costs.




                                    _________________________________
                                    TUCHER, J.




Siva v. Siva (A157544)



                                       9
Trial Court:Alameda County Superior Court

Trial Judge:     Hon. Jennifer Madden

Counsel:

Law Offices of Bradley D. Bryan, Bradley D. Bryan, for Appellant.

Ross Family Law, Renee R. Ross, Darien M. Meyer, for Respondent.
