Marriage of Silva

Filed 9/26/06 Marriage of Silva CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In this family law matter, Gary A. Silva appeals from the trial court’s order setting the amount of unpaid child support (arrearages) accrued since 1999. We conclude that the trial court erred in two respects. First, the court erred by interpreting Gary’s written promise to contribute to a college fund for the children as a child support obligation. Second, the court made improper retroactive modifications to an existing child support order that required Gary’s former wife, Kim I. Silva to pay child support to Gary.[1] Accordingly, we shall reverse.

I. Factual and Procedural Background

A. Introduction

Gary and Kim were married in 1987. There were four children of the marriage, two boys and two girls. When Kim petitioned for dissolution in 1992 the children ranged in age from nine months to five years. Initially, all four children lived with Gary and there was no order for child support. Gary eventually obtained a child support order that was effective October 15, 1997. Since the parties planned to transition to an equal timeshare arrangement, the child support order was calculated using a 50-50 timeshare factor. Kim’s income was substantially greater than Gary’s so that the result of the child support calculation was that Kim owed Gary $716 per month.

In or about August 1998, all four children moved in with Kim and a year later, Kim moved to Oregon, taking the children with her. She moved back to California at the end of 2002 and on May 30, 2003, she filed a motion in this action seeking modification of the original child support order. Kim now wanted to move back to Oregon with the children. Gary ultimately agreed to the move so that the issues at trial involved prospective child support and support arrearages.

This appeal concerns child support owed from one party to the other for two periods of time: the time during which Kim lived in Oregon with the children (August 28, 1999-December 28, 2002), and the five months preceding the date Kim filed the instant motion (December 28, 2002-May 30, 2003).

B. August 28, 1999-December 28, 2002

In connection with her move to Oregon Kim drafted a “Stipulation Regarding Child Custody and Order Thereon,” memorializing the parties’ agreement pertaining to the planned move. The agreement provides that, effective August 28, 1999, the children’s primary residence would continue to be with Kim who would be permitted to move to Oregon and raise the children there. The agreement goes on to state: “In lieu of child support, Gary Silva agrees to place $100 each month for each child until the age of 18 or the month each child graduates from high school, whichever comes first, into a trust fund to be used toward the children’s college education. This fund will be set up as mutually agreed by both parties.” The agreement was not submitted to the court for approval.

Both parties testified at trial in this matter that the 1999 agreement reflected their intent that Gary would establish a college fund for the children. Kim confirmed that during the time she lived in Oregon she “was able to provide the other needs of the children.” In 1999 Kim earned $60,000 to $65,000 annually. Her earnings for 2001 and 2002 were around $100,000 and $111,000 respectively. Gary, who had been employed as a hospital security guard since 1991, earned significantly less than Kim did. Nevertheless, at the time the parties entered into their 1999 agreement, Kim believed that Gary “had an obligation to support the children” and that the monthly deposits would be “a good way to establish a college fund for the children.” In his offer of proof, Kim’s attorney stated that $400 per month is significantly less than what Gary would have owed under the statewide uniform child support guidelines. (Fam. Code, § 4050 et seq.)[2] Kim testified on cross examination, however, that she had not performed the guideline calculation when she drafted the 1999 agreement.

Gary had a daughter by a prior marriage. In late 1999 or early 2000, proceedings were commenced to modify Gary’s support obligation to that child. Kim testified that around this time Gary asked her for a copy of their agreement to show to the district attorney in that matter. Gary also submitted a financial statement (simplified) in connection with those proceedings in which he marked the box showing that he paid $400 per month in child support for his minor children not living with him.

The parties never did set up a trust or any type of trust account. Gary testified that he started setting the money aside in his regular checking account and had saved up more than $4000 that way. After a time, however, his older son began having emotional problems and Gary started visiting him and the other children in Oregon more frequently than he had been. Gary used up all of the college-fund savings paying for these trips to Oregon and buying groceries for the family when he was there. Gary testified that Kim knew that he would have to use the college-fund money for these purposes. Kim denied having discussed this issue with him.

C. December 28, 2002-May 30, 2003

Kim returned to California on December 28, 2002. Kim’s employment had been terminated and she was having trouble handling the two oldest children who were, by now, teenagers. The two boys began living with Gary and the two girls remained with Kim. A few months later, the parties’ older daughter also moved in with Gary. Gary now had primary custody of three children and Kim had one.

D. The Trial Court’s Order

Following trial, the court entered an Amended Statement of Decision and Order setting prospective child support payments and determining arrearages owed from Kim to Gary or from Gary to Kim for the periods before, during, and after the time Kim lived in Oregon with the children.

With respect to the period during which Kim lived in Oregon, the trial court made the following factual finding: “In 1999, the parties entered into a further agreement, effective August 28, 1999, continuing the custodial arrangement agreed to in 1998, but provided, in addition, that (a) [Kim] could relocate with the children to Oregon and (b) [Gary] would, in lieu of Child Support, place the sum of $100 per month per child ($400/month total) into a trust fund to be used toward the children’s college education.” The court then concluded: “For the period commencing August 28, 1999 through December 28, 2002, [Gary] is obligated to [Kim] for child support in the amount of $400 per month, pursuant to the agreement of the parties. None of this has been paid. The Court notes that in [Gary’s other family law case, Gary] claimed and was allowed a deduction for the Child Support obligation in calculating the amount of Child Support he was to pay in that action regarding another child.”

As to the period from December 28, 2002 through April 2003, “the parties each had custody of two children and, based upon the equities . . . (their respective incomes and obligations to the children in their custody)” neither parent was obligated to the other for child support. For the month of May 2003, since Gary then had three of the children, the court held that Kim was obligated to Gary for the support of two children so that she owed him half of the amount set in the original child support order: $358.

II. Discussion

A. Arrearages for December 28, 2002 through May 30, 2003

We begin with the portion of the order pertaining to the five months following Kim’s return to California on December 28, 2002. Gary contends that the original order was still in effect and, therefore, the court should have set arrearages for this entire period at $716 per month from Kim to Gary. Gary is correct.

We usually review a judgment for child support under the abuse of discretion standard. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282-283.) But the trial court’s discretion must be exercised within the limits of the child support statutes. (In re Marriage of Fini (1994) 26 Cal.App.4th 1033, 1044.) Gary’s argument is that the court’s order exceeds the limits of those statutes. Thus, since the pertinent facts are not in dispute, we are not bound by the trial court’s conclusions of law but must independently ascertain the conclusion to be drawn from the facts in the record. (Leslie Salt Co. v. San Francisco Bay Conservation etc. Com. (1984) 153 Cal.App.3d 605, 611.)

Prior to Kim’s motion in the instant matter, the only order for child support was the 1998 order for Kim to pay Gary $716 per month. Even when Kim obtained custody of all four children the original order continued in force. (See Jackson v. Jackson (1975) 51 Cal.App.3d 363, 368 [support obligor’s assumption of sole custody of child does not extinguish existing support order].) The existing order may not be modified or terminated prior to the action of the court. (In re Marriage of McCann (1994) 27 Cal.App.4th 102, 107.) And the trial court is without discretion to modify a prior order. Section 3651, subdivision (c)(1) provides that, with exceptions not pertinent here, “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.” (See also, County of Santa Clara v. Wilson (2003) 111 Cal.App.4th 1324, 1327; In re Marriage of Perez (1995) 35 Cal.App.4th 77, 80-81.)

When Kim became the primary custodial parent of all four children in August 1998, she did not seek modification or termination of the existing order. She simply ceased making any payments to Gary. Gary reasonably did not ask the court to calculate arrearages under the order for this time period. In effect, the parties concede that Kim satisfied her obligation under the order by assuming custody of the children. But the order itself remained in effect until the court made a new order. It is true, as Kim argues, that when the court’s jurisdiction is invoked to enforce the terms of the original child support order, the court may consider whether the support obligor has satisfied or otherwise discharged the obligation imposed by the original order. (In re Marriage of Trainotti (1989) 212 Cal.App.3d 1072, 1075.) For example, where the obligor parent has assumed sole custody and paid all the child’s expenses, that parent may be deemed to have satisfied his or her obligation under an existing order in favor of the other parent. In this situation, relieving that parent of additional obligation does not violate the prohibition against retroactive modification of the support award. (Ibid.; and see Jackson v. Jackson, supra, 51 Cal.App.3d at p. 368.) But the principle is not applicable here because there is no evidence that Kim satisfied her obligation under the existing order for the five months following her return to California.

The trial court may have mistakenly assumed that Kim’s obligation under the original order was based upon Gary’s having primary custody of all four children. This would explain why the court found that neither party had an obligation to the other when each had two of the children. Kim’s only argument in support of the court’s order is based upon the same erroneous assumption. Kim maintains that the court had equitable jurisdiction to refuse to enforce the existing order because “each party had care and control of two children.” In fact, the prior order had been calculated based upon a 50-50 timeshare; it just happened that the parties’ incomes were such that Kim owed Gary $716 per month even though she was to have equal custodial responsibility. Thus, for the period when each party had care and control of two children, the relative timeshare was exactly the same as that contemplated by the original order--50-50. When one of the girls moved in with Gary in April, his timeshare became even greater. This is not evidence to support an implied finding that Kim had discharged her obligation by assuming a greater share of the custodial and financial responsibility than that imposed by the prior order. Accordingly, the trial court erred in failing to enforce the prior order for this period of time.

B. Arrearages for the Period During Kim’s Residence in Oregon--The $400 Per Month College Fund

We now turn to the period preceding Kim’s return to California. Gary contends that the trial court erred in construing his promise to establish a college fund as a child support obligation. We agree.

The initial question is the interpretation of the written instrument, which is a pure question of law unless interpretation turns upon the credibility of extrinsic evidence. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865.) There is no conflict in the pertinent evidence here. Indeed, the trial court’s factual finding is consistent with Gary’s contention: the agreement called for payments to be made into a fund to be used toward the children’s college education. But the trial court’s conclusion was that this agreement obligated Gary to make child support payments to Kim. The question before us, therefore, is whether the court’s factual finding can support this legal conclusion. Because this, too, is a pure question of law, we may independently review the trial court’s conclusion. (Leslie Salt Co. v. San Francisco Bay Conservation etc. Com., supra, 153 Cal.App.3d at p. 611.)

Gary’s preliminary contention is that the August 28, 1999 agreement was not a court order and, therefore, may not be enforced as such. Gary is correct that the agreement may not be enforced as a child support order. But this is not because, as Gary argues, Kim failed to seek enforcement pursuant to Code of Civil Procedure section 664.6. (See In re Marriage of Armato (2001) 88 Cal.App.4th 1030, 1038 [permitting enforcement of agreement to increase court-ordered child support by way of a motion under Code Civ. Proc., § 664.6].) Rather, as Gary also argues, the court’s error was in transforming an agreement to create a fund for the children’s future educational needs into an agreement to reimburse Kim for her support of the children during the pertinent time period.

In the first place, the agreement, on its face, is not an agreement for child support. It is entitled “Stipulation Regarding Child Custody”; not a stipulation regarding child support. The paragraph at issue states that “[i]n lieu of child support” Gary would place money in a fund “to be used toward the children’s college education.” That is, the college-fund payments were to be made instead of child support. Payments for the children’s future needs are not “child support” within the meaning of the Family Code. Child support is payment for the current needs of the minor children. (See Primm v. Primm (1956) 46 Cal.2d 690, 694; In re Marriage of Chandler (1997) 60 Cal.App.4th 124, 130.) By its terms, therefore, the agreement does not contemplate the payment of child support. The extrinsic evidence is not to the contrary; the parties agree that the money was to be used for the children’s future college expenses.

Kim argues that the court’s order is supported by the inference that Gary’s payments into the college fund were, in effect, compensation for Kim’s voluntary support of the children during this time. But such an order would run afoul of the rule that a parent cannot claim reimbursement for money paid to support a child prior to an order of the court directing the other parent to pay support to meet the current needs of the child. (Bierl v. McMahon (1969) 270 Cal.App.2d 97.) As section 3951, subdivision (a) specifically provides: “A parent is not bound to compensate the other parent, or a relative, for the voluntary support of the parent’s child, without an agreement for compensation.”

Kim’s argument may be construed to mean that the parties had impliedly agreed that Gary’s payment was compensation for Kim’s voluntary support of the children. But the implication cannot be drawn from the evidence. There was no evidence to link the $400 to the amount Gary might have owed under the guidelines. Kim admitted she never ran the guideline calculations. Even Kim did not go so far as to say that she expected Gary to reimburse her for her support of the children during that time. She merely agreed that she believed Gary had an obligation to provide support and, since she was able to provide for the children’s current needs, she thought that requiring Gary to make regular deposits into a trust account was a good way to establish a college fund for the children.

Kim argues that since Gary represented to the court in the proceedings relating to his other child that the $400 per month was “child support,” he should be estopped from arguing here that the payments were not child support. The trial court seems to have been persuaded by this argument. But the evidence is insufficient to support an implied finding of estoppel.

The situation is not one of equitable estoppel, which requires reliance by the party asserting the estoppel. (Evid. Code, § 623.) There is no evidence that Kim relied upon Gary’s representation in the other family law proceeding. Rather, if there is a basis for estoppel it would be judicial estoppel. Judicial estoppel prevents a party from asserting a position in a judicial proceeding that is contrary to or inconsistent with a position asserted in a prior proceeding. (International Engine Parts, Inc. v. Feddersen & Co. (1998) 64 Cal.App.4th 345, 350.) The doctrine is intended to protect the integrity of the judicial process by preventing litigants from playing “fast and loose” with the courts and may be applied in the trial court’s discretion. (Ibid.) It should be invoked, however, only in egregious cases (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1018) where a party misrepresents or conceals material facts. (California Amplifier, Inc. v. RLI Ins. Co. (2001) 94 Cal.App.4th 102, 118.)

It is true that Gary put an “X” in the box on the simplified financial statement indicating that he paid $400 for “child support” for his children not living with him. But there was no space on that form that better characterizes the $400. Since the children were not living with him and since he believed that he had a $400 per month obligation, it was not unreasonable for him to have inserted the amount on the line for child support. But checking the child support box on the simplified form does not amount to a factual misrepresentation. Gary unquestionably believed that he was obligated to make the $400 per month payments. His characterization of the payments as child support is a legal conclusion. Indeed, Gary asked Kim for a copy of the agreement to show the district attorney what the obligation actually was. It happens that the legal conclusion is at odds with both parties’ admitted understanding of how the money was to be used. A mistaken legal conclusion does not undermine the integrity of the judicial process. (Cf. California Amplifier, Inc. v. RLI Ins. Co., supra, 94 Cal.App.4th at p. 118 [changing legal arguments not subject to judicial estoppel doctrine].) We conclude, therefore, that the trial court erred in relying upon the estoppel concept to transform Gary’s promise to provide a fund for the children’s future college expenses into a child support obligation from Gary to Kim.

Even if Gary’s promise to create the college fund is enforceable, there is a significant difference between enforcing that obligation according to its terms and enforcing the obligation as child support arrearages. By characterizing the obligation as child support, the trial court has no jurisdiction to do anything other than to order Gary to pay the money to Kim. A trial court has no authority to create a fund to meet the future needs of the minor children. (In re Marriage of Chandler, supra, 60 Cal.App.4th at p. 130.) A court’s jurisdiction to determine the amount of child support “is limited to the conditions and circumstances existing at the time [the child support order is] made, and the court cannot then anticipate what may possibly thereafter happen and provide for future contingencies.” (Primm v. Primm, supra, 46 Cal.2d at p. 694.) In short, by characterizing the agreed-upon payments as child support, the trial court was bound to enforce the parties’ agreement in a manner that disregards their express intent. Gary must deliver the funds directly to Kim with no guarantee that she will use the money as the parties had intended it to be used.

Since the parties unquestionably intended that the $400 per month be accumulated for the children’s future educational needs, we conclude that the trial court erred in holding that the parties’ August 28, 1999 agreement created a child support obligation from Gary to Kim. Whether and in what manner the agreement is otherwise enforceable is not an issue we are called upon to consider.

III. Disposition

The trial court’s order dated December 28, 2004 is reversed. The matter is remanded to the trial court for further proceedings consistent with the views expressed herein.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

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[1] Consistent with the tradition in marital dissolution cases, we refer to the parties by their given names for the sake of clarity and mean no disrespect in doing so. (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)

[2] Hereafter, all unspecified code references are to the Family Code.