Marriage of F.K. and J.A.CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. D469406
- Trial judge
- Adam Wertheimer
- Outcome
- affirmed — Affirmed.
- Area
- family
- Panel
- Gilbert Nares (author), Patricia D. Benke, Joan K. Irion
Analysis
The trial court modified the father's child support obligation to zero effective August 1, 2013, but refused to retroactively apply the modification to 2010 or eliminate prior arrears. The Court of Appeal affirmed the order, holding that the trial court correctly applied the statutory limit on retroactive modification to the date of the motion filing.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Refusal to retroactively modify child support obligations prior to the filing of the motion to modify (i.e., before August 1, 2013).“The law allows retroactive application of an order modifying or revoking child support, but only to the date of filing a notice of motion or order to show cause on the proposed modification.” | de novo | correct | agree with court agree with court |
Refusal to set aside the 2011 child support order or zero out arrears accumulated prior to August 1, 2013.“In April 2014 the court had no basis to 'undo' the prior proceedings, and it correctly decided the issues pending at the time.” | abuse of discretion | correct | agree with court agree with court |
Authorities
- relied: In re Marriage of Everett (1990) 220 Cal.App.3d 846 — Retroactive modification of child support is limited to the date of filing the motion to modify.
- relied: In re Marriage of Cryer (2011) 198 Cal.App.4th 1039 — Supports the statutory interpretation that retroactive application of support modifications is capped at the filing date of the motion.
The appellate opinion: sound — The opinion correctly identifies the statutory limit on retroactive modification under Family Code section 3653 and applies it to the specific dates in the record. It properly rejects the appellant's argument for earlier retroactivity based on the procedural history of prior, unappealed orders.
How this analysis was made · dispute it
unusual dispositionThe family court, on Father's July 24, 2013 motion, reduced his child support obligation to zero effective August 1, 2013, but declined to modify support for any earlier period or to set aside the 2011 support order and the arrears accrued under it. The Court of Appeal affirmed, holding that Family Code section 3653 limits retroactive modification to the date the modification motion was filed and that the unappealed dispositions of Father's earlier set-aside efforts left the trial court no basis in 2014 to undo the 2011 order.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Refusal to make the child support modification retroactive to a date (2010) earlier than the filing of the July 2013 modification motion; modification made retroactive only to August 1, 2013.“The court's order to modify Father's support obligations was made retroactive to August 1, 2013, which is as far back as the law permitted.” | unclear | correct | agree with court The opinion does not state a standard of review but treats the issue as a pure question of law under Family Code section 3653. Subdivision (a) permits retroactivity only to the date of filing the notice of motion, and subdivision (b) (unemployment) likewise goes back no earlier than service of the motion or the date of unemployment, so a 2010 effective date was unavailable as a matter of law. Everett and Cryer support this reading. One imprecision: the statute would have allowed retroactivity to the filing date of July 24, 2013, so August 1 was not literally 'as far back as the law permitted,' but section 3653(a) is discretionary ('may') and Father did not appear to challenge that one-week gap, so the result stands. |
Refusal in April 2014 to set aside the 2011 child support order and to reduce Father's accrued arrears to zero.“In April 2014 the court had no basis to "undo" the prior proceedings, and it correctly decided the issues pending at the time.” | unclear | correct | agree with court Father's earlier set-aside motion was taken off calendar for nonappearance, his later request to recalendar was denied on the merits, and he did not appeal those orders; the only matter before the court in April 2014 was the July 2013 modification motion. Because section 3653 bars modification for periods before the filing of that motion, support accrued under the 2011 order through July 2013 could not be disturbed in that proceeding, and the opinion's conclusion follows from the authorities it cites. The reasoning would have been stronger with citation to Family Code section 3651, subdivision (c)(1), which bars modification of accrued arrears, or to the section 3690-3691 set-aside procedure, but the omission does not affect the result. |
Authorities
- relied: In re Marriage of Everett (1990) 220 Cal.App.3d 846 — Under former Civil Code section 4700, subdivision (a) (continued without substantive change as Family Code section 3653), an order modifying child support may be made retroactive only to the date of filing the notice of motion or order to show cause for modification.
- relied: In re Marriage of Cryer (2011) 198 Cal.App.4th 1039 — Family Code section 3653 limits retroactive modification of a child support order to the period after the filing of the modification request.
The appellate opinion: sound with gaps — The opinion correctly applies Family Code section 3653 and the cases construing it to reject Father's request for retroactivity to 2010, and correctly notes that unappealed prior rulings left nothing to 'undo' in 2014. It is thin, however: it states no standard of review, slightly overstates that August 1, 2013 was 'as far back as the law permitted' when the filing date was July 24, 2013, and does not cite section 3651(c)(1) on the non-modifiability of accrued arrears.
Opinion
Filed 9/25/15 Marriage of F.K. and J.A.CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of F.K. and J.A. D065876 J.A., Appellant, (Super. Ct. No. D469406)
v. F.K., Respondent.
APPEAL from an order of the Superior Court of San Diego County, Adam Wertheimer, Judge. Affirmed.
J.A., in pro. per., for Appellant.
F.K., in pro. per., for Respondent.
J.A. (Father), in propria persona, appeals a 2014 family court order that modified a 2011 child support order. The appealed order reduced Father's child support obligations to F.K. (Mother) to zero, effective August 1, 2013. Father contends that the court erred by not entirely setting aside the 2011 child support order, not retroactively applying his modified child support obligations further back in time, and not setting his child support arrears balance to zero. We reject Father's contentions and affirm.
FACTUAL AND PROCEDURAL BACKGROUND1
Father and Mother have one child together. In October 2011 the court held a hearing on child support payments that Mother sought from Father. Father did not appear at the hearing. The court imputed his income to be $9,500 per month and ordered monthly child support payments of approximately $1,300 (the 2011 Order).
Father filed a motion to set aside the 2011 Order, but did not appear at the hearing on his motion. As a result, his motion to set aside the 2011 Order was taken off calendar.
Almost a year later, Father filed a request to set the 2011 matter back on calendar, but his request was denied on the merits, and the court set a review hearing for May 2013.2 Father did not appear at the hearing to review his child support obligations, and the matter was taken off calendar.
On July 24, 2013, Father filed a motion to modify his child support obligations and requested that any modification be given retroactive application. On April 15, 2014, the court held a hearing on the matter, and both parties were present. Father was 1 Mother's motion to strike Father's opening brief and his opposition to motion to dismiss brief, and request for sanctions, are denied. We have not relied upon any matters outside of the record or similarly defective materials and elect to forgo our options to order the brief returned for correction or to strike the brief. (Cal. Rules of Court, rule 8.204(e)(2)(C).)
2 Father explicitly states that he is not appealing the denial of his request to put the 2011 issues back on calendar; rather, he is only appealing an April 15, 2014 order. Accordingly, Mother's motion to dismiss the appeal based on timeliness and jurisdictional grounds is denied. 2 represented by counsel. Based on evidence that Father was unemployed, financially dependent on others, and suffering from illnesses and/or disabilities that prevented him from working, the court reduced his child support obligations to zero, effective August 1, 2013.3 In response to his counsel's inquiry concerning past amounts owed by Father (i.e., before August 2013), the court stated that it could not retroactively modify a support order prior to the filing of the request to modify.
DISCUSSION
Father contends he has been disabled and unable to become employed since 2010.
He contends the court erred by not modifying his child support obligations back to when his disability allegedly began in 2010. The law allows retroactive application of an order modifying or revoking child support, but only to the date of filing a notice of motion or order to show cause on the proposed modification. (Fam. Code, § 3653, subds. (a), (b);
In re Marriage of Everett (1990) 220 Cal.App.3d 846, 852 [citing former Civ. Code § 4700, subd. (a), which was continued by Fam. Code, § 3653 without substantive change]; see In re Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1051-1052.)
The appealed order is dated April 15, 2014, and concerned Father's motion to modify his child support obligations filed in late July 2013. The court's order to modify Father's support obligations was made retroactive to August 1, 2013, which is as far back as the law permitted. Father apparently ignores or misunderstands the procedural history 3 Father requests we take judicial notice of the fact that he is disabled, based on a July 2015 social security administration award letter. His request for judicial notice is denied. The document was not before the trial court, and whether Father is actually disabled is not a proper matter for judicial notice and not relevant to the issues on appeal. 3 of his case. Although he had previously sought to set aside the 2011 Order, those motions were either (1) terminated as a result of Father's nonappearance or (2) denied on the merits. He did not timely appeal any orders from those prior proceedings. In April 2014 the court had no basis to "undo" the prior proceedings, and it correctly decided the issues pending at the time. Father has not demonstrated any reversible error.
DISPOSITION
The order is affirmed. Mother is entitled to costs on appeal.
NARES, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
Cites, in this corpus
- Cryer v. Cryer No. B222906 · 2011-08-29
- In Re Marriage of Everett A046801 · 1990-05-22