Marriage of Spring

Filed 6/30/06 Marriage of Spring CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Randall Magnuson, Judge. Affirmed.

In 1982, in connection with a pending dissolution action, appellant stipulated he would pay his wife $100 a month in spousal support and $100 a month in child support. At or near the time appellant and his wife reached this agreement, she was receiving public assistance and assigned her right to support to the County of San Diego. The trial court found that over the course of the following 22 years, the county in fact made continuing efforts to recover support from appellant. Accordingly, the trial court denied appellant's petition that he be protected from enforcement of the spousal support order.

We affirm.

SUMMARY

Appellant Duane L. Spring (Duane) married Isabel Z. Spring (Isabel) in April 1977. They had one child, Dorothy Ann, who was born in 1978.

In May 1981 Duane and Isabel separated and in November 1981 Duane filed a dissolution petition in the trial court. In April 1982 Duane stipulated to an order which required that Duane pay Isabel $100 per month in child support and $100 per month in spousal support. No judgment in the dissolution proceeding was ever entered.

In April 1982 the Department of Revenue and Recovery of the County of San Diego (the county) obtained an order requiring that Duane pay his support obligation to the county.

The county's records show that between 1982 and 2001 the county collected support from Duane.^[1] The county's collections were sporadic between 1982 and 1990, but in 1991 the county enlisted the assistance of officials in Ohio, where Duane resided at that point. Thereafter the county received more regular payments either from Duane or from the Internal Revenue Service. The last collection in 2001 was apparently a payment the county received from the Internal Revenue Service from a tax refund which was due to Duane. The payments Duane made did not meet his total obligation under the support order.

In 1991, after the county received assistance from Ohio officials, Duane initiated a divorce proceeding in Ohio. Although Isabel was served with the Ohio summons, she did not appear and Duane obtained a default judgment ending the marriage. The Ohio judgment states that the Ohio court had no jurisdiction over child support or custody; however, the Ohio judgment also purports to relieve the parties of any obligation to pay alimony.

In 2004 Duane filed an order to show cause in the trial court in which he asked to be relieved from the terms of the 1982 stipulation. As to child support, the county agreed Duane's obligation ceased as of March 1996, when Dorothy Ann reached her majority. However, as to arrearages and spousal support, the county argued the stipulation should be enforced. By way of a second order to show cause, Duane argued that the stipulation was not enforceable because of lack of diligence and laches.

The trial court conducted an evidentiary hearing on the second order to show cause and denied it. The court found that under Family Code^[2] section 4502 the support order was enforceable until paid in full. The court found that because of provisions of section 4502 added in 1992 and 2000, Duane could only assert the defenses of laches with respect to amounts owed to the county. However, the court found that the county had in fact pursued collection and that it was not subject to laches.

DISCUSSION

On appeal Duane argues the trial court erred in failing to fully consider his defenses of lack of due diligence and laches. We find no reversible error. As we explain more fully below, even if the due diligence and laches defenses were available to Duane because the support order was entered before those defenses were largely eliminated by the Legislature, Duane's motion was properly denied because as a factual matter the county made regular and consistent efforts to obtain payment on the order.

"Prior to 1993, a judgment for child or family support could be enforced by writ of execution without prior court approval until five years after the child reached majority, and thereafter only as to amounts that were not more than ten years overdue. A judgment for spousal support could be enforced by writ of execution without prior approval for amounts not more than 10 years overdue. (Former [Civil Code] § 4383, subd. (a).) Beyond these time frames, the trial court had discretion to determine whether to allow enforcement of the judgment. In making this determination, the trial court was required to consider the lack of diligence in pursuing enforcement for more than these specified periods. (Civ. Code, former § 4384, repealed by Stats. 1992, ch. 162, § 3, p. 464, operative Jan. 1, 1994 (hereafter, former section 4384).)

"Then in 1992 the Legislature decreed that (1) a judgment for child or spousal support was exempt from any requirement that judgments be renewed; and (2) such judgment, including lawful interest and penalties, 'is enforceable until paid in full.' (Civ. Code, former § 4384.5, added by Stats. 1992, ch. 718, § 3, pp. 3319-3320; amended by Stats. 1993, ch. 876, § 1, operative Jan. 1, 1994, and continued without substantive change in Fam. Code, § 4502, which adds a new reference to 'family' support.) At the same time, the Legislature repealed former sections 4383 and 4384. And to further emphasize the new order, the Legislature also inserted the same intention in the general provisions for renewal and enforcement of judgments. Specifically, in 1992 it amended Code of Civil Procedure section 683.130 to provide that judgments for child or spousal support are exempt from renewal requirements and are enforceable until paid in full. (Code Civ. Proc., § 683.130, as amended by Stats. 1992, ch. 163, § 30, pp. 739-740, operative Jan. 1, 1994; see Stats. 1992, ch. 718, § 4, p. 3320 [ch. 718 prevails].)

"With these legislative changes, spousal and family support orders are enforceable in perpetuity until paid. The lack of diligence defense is gone, as is the trial court's discretion in deciding whether to enforce a judgment beyond the presumptively timely period for enforcement." (In re Marriage of Garcia (1998) 67 Cal.App.4th 693, 697-698, fn. omitted.)

Although the Legislature had effectively eliminated the lack of diligence defense as of 1993, it had not eliminated the equitable defense of laches, which in addition to requiring an absence of enforcement required a payor spouse to show prejudice. (See In re Marriage of Plescia (1997) 59 Cal.App.4th 252, 259-262; In re Marriage of Garcia (2003) 111 Cal.App.4th 140, 145-146.) In 2002 the Legislature added section 4502, subdivision (c), which states: "In an action to enforce a judgment for child, family or spousal support, the defendant may raise, and the court may consider, the defense of laches only with respect to any portion of the judgment owed to the state." (Stats. 2002, ch. 304 (S.B. No. 1658).)

There appears to be a split of authority with respect to whether the Legislature's limitations on the due diligence and laches defenses apply to support orders, such as the one in this record, entered before those limitations were enacted. (Compare In re Marriage of Garcia, supra, 67 Cal.App.4th at pp. 698-699 and In re Marriage of Fellows (2004) 121 Cal.App.4th 607, 611-612 [review granted Dec. 1, 2004].) The issue is now pending in the Supreme Court. (See In re Marriage of Fellows, review granted Dec. 1, 2004.) On this record, however, we need not reach the retroactivity question currently under consideration by the Supreme Court.^[3] As we have noted, the trial court found that the county did not abandon its efforts to collect support from Duane and was not subject to the laches defense. These findings are subject to the familiar deferential standard of review under which all factual conflicts are resolved in favor of the respondent and the trial court's ruling will not be disturbed unless there was an abuse of discretion. (In re Marriage of Garcia, supra, 111 Cal.App.4th at p. 148.) Here at most there was a three-year delay between the county's last collection and Duane's effort to prevent enforcement. We have found no case in which that relatively short period of delay, after years of consistent collection efforts, was found to support the defenses of lack of diligence or laches. (See ibid. [seven-year delay not as long as some cases applying laches].) Thus, even if those defenses were available, this record would not support them.^[4]

Duane nonetheless argues that continued enforcement of the spousal support order is inequitable because the marriage was of a relatively short duration and because after 1991 he believed he was only paying child support. We are not entirely unsympathetic to these circumstances; however, we note that at all times Duane had the opportunity to seek relief from the terms of the spousal support order in the trial court and that had he done so while Dorothy Ann was still a minor, Isabel may have been able to obtain more than the $100 a month in child support which was first established in 1982 and was never modified. Thus we do not believe the equities here require any special application of the diligence or laches defenses.

Order affirmed.

BENKE, Acting P. J.

WE CONCUR:

HALLER, J.

O'ROURKE, J.

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^[1] The county filed those records in the trial court. They were not made a part of the appellant's appendix. We grant the county's request that we take judicial notice of the records. (Evid. Code, § 452, subd. (d).)

^[2] All further statutory references are to the Family Code unless otherwise specified.

^[3] Because we do not apply section 4502, subdivision (c), we decline to take judicial notice of its legislative history.

^[4] The Ohio divorce judgment did not alter the validity or enforceability of the earlier California support order. (See Lundahl v. Telford (2004) 116 Cal.App.4th 305, 313.)