Jackson credits are not limited to collection proceedings. . .
In affirmance, First District majority holds that trial court did not err by awarding Jackson credits to father who paid his child support obligation even though the child lived with him; credits do not constitute an impermissible retroactive modification of child support.
In re Marriage of Siva
(August 25, 2020)
California Court of Appeal 1 Civil A157554 (Div. 4) 53 Cal.App.5th 1170, __ Cal.Rptr.3d __, 2020 FA 1951, per Brown, J (Pollak, PJ concurring; Tucher, J, dissenting) Alameda County: Madden, J, affirmed. For appellant: Bradley Bryan, (650) 364-3600. For respondent: Darien Meyer, (925) 886-6181. CFLP §E.50.
When Ana Siva filed for divorce from her husband, Carl, in July 2017, they had one child, a teenaged daughter, S.S. During the "contentious" proceedings that followed, S.S. had a hard time dealing with the conflict and "experienced serious issues." Acting on Carl's request, the trial court appointed counsel for S.S. The court entered the parties' MSA and disso judgment in January 2018. It provided that the parties would have joint legal and physical custody of S.S., but Ana would have a 72% timeshare and Carl a 28%. S.S. was authorized to spend time at either parent's house, at her discretion. Carl was ordered to pay Ana child support of $1,700 per month.
On April 10, 2018, S.S. left Ana's house and began living with Carl full time. Ana filed a request for an income withholding order for child support. When the trial court held a custody review hearing in July 2018, Carl asked the court to award him full custody of S.S., with weekly visits for Ana at S.S.'s discretion and to issue an order for reunification therapy to address the conflicts in the relationship between Ana and S.S. He also asked for the appointment of a special master to deal with issues relating to S.S.'s working or getting a driver's license. In response, Ana asked the trial court to prohibit S.S.'s working or getting a driver's license and to order the teen to return to her house. After a hearing, the trial court ordered Ana and S.S. to participate in reunification therapy, authorized S.S. to continue working, and denied Ana's requests re the driver's license and the teen's return to her home. At a review hearing in January 2019, Carl asked the trial court to vacate a previously calendared custody trial date and to grant him full physical custody of S.S. because reunification therapy hadn't been successful. The trial court then continued the custody trial and ordered a full custody evaluation.
On February 27, 2019, Carl filed a request for a child support modification and Jackson credits (Jackson v. Jackson (1975) 51 Cal.App.3d 363), reimbursement for money he had spent for S.S.'s needs, and attorney's fees. He asked the trial court to order Ana to pay $812 per month for child support, retroactive to the date he had filed for the modification; Jackson credits of $18,133, representing child support he had paid from April 11, 2018, to February 27, 2019 (the date S.S. began living with him to the date of filing his mod request); and Fam C §271 sanctions. After a hearing, the trial court granted Carl's mod request, but ordered that neither parent pay child support, since Ana had recently been laid off. The court then found that Jackson credits were appropriate and ordered Ana to pay $1,000 a month to Carl until $18,133 was paid in full. The court denied the parties' requests for sanctions.
Ana appealed, but a First District majority (2-1) affirmed.
He paid and paid. . .
Ana first contended that in ordering Jackson credits, the lower court had abused its discretion by retroactively modifying child support to a date prior to Carl's filing for a mod in violation of Fam C §3653(a), Fam C §3651(c)(1), and 3603. The majority, however, noted that in several cases, such as Jackson, In re Marriage of Trainotti (1989) 212 Cal.App.3d 1072, 261 Cal.Rptr. 36, 1989 CFLR 4126, 1989 FA 388, and Helgestad v. Vargas (2014) 231 Cal.App.4th 719, courts had held that giving credits to a child support obligor for meeting his or her child support obligation by having physical custody of the child does not constitute retroactively modifying child support beyond the statutory authorization. They reasoned that satisfying a child support obligation in that way was payment for the existing order or any arrearages that occurred. In this case, the justices found, Carl had paid twice; he had paid child support as ordered and also had physical custody of S.S. during the period for which sought credits. Therefore, the majority concluded that recognition of his double payment was not "retroactive termination or modification of child support orders under [Fam C §§3651, 3653, or 3603], and, for the same reasons, did not impermissibly set aside a child support order under [Fam C 3692]."
Votes for equality. . .
Ana next argued that Jackson credits could be ordered only in collection proceedings, such as in Jackson, where the recipient sought to recover child support arrearages by writ of execution. The majority could not find a case that allowed Jackson to be applied in modification proceedings where no arrearages had accumulated, and the parties had not cited one. However, they believed that the lower court had discretion to expand Jackson beyond collection actions. They found guidance in In re Marriage of Starr (2010) 189 Cal.App.4th 277, 116 Cal.Rptr.3d 813, 2010 CFLR 11645, 2010 FA 1461, where the appellate court found that the trial court had equitable discretion to grant or deny a request for a refund or a credit against arrearages for overpaid child support, and in Y.H. v. M.H. (2018) 25 Cal.App.5th 300, where the appellate court found that the lower court had discretion to provide a credit for overpaid child support where there were no arrearages, either as a credit against future payments or as a refund. Turning to the case at hand, the majority noted that the applicable child support statutes do not prohibit granting a credit. Moreover, it would be inequitable to deny the trial court discretion to order a credit where, as here, the payor had paid twice. The majority hastened to add that they were not requiring the lower court to issue a credit; they only found that it had discretion to do so. And, it had not erred in making such an order.
Being careful of what she wished for. . .
Finally, Ana asserted that the trial court erred by failing to order need-based attorney's fee to her per Fam C §2030 and §2032. The majority pointed out that she hadn't requested fees under those statutes in the trial court, and they declined to make such an order on appeal. As for her fee request under Fam C §271, the justices pointed out that fees are not ordered under that statute based on need but rather on the frustration of settlement or causing an increase in litigation costs. And, as Anna hadn't presented any evidence that Carl had done either of those things, the lower court had not erred in denying her fees as sanctions request.
Dissent. . .
The dissenting justice did not agree with the majority's analysis of the issue of Jackson credits and would have found that it was error to order them. The justice reasoned that the recipient was entitled to believe that the child support payments she received were proper and that ordering Jackson credits constituted a "post hoc gotcha."
We can understand the dissenting jurist's point of view. It doesn't seem equitable to allow a child support obligor to just wait in the weeds and then spring a refund request on the recipient. We have no reason to suppose that was what Carl did; it's more likely that he didn't know he could ask for a reduction while his daughter lived with him. Besides, it's a rare case in which the obligor pays more than he or she should. Most of the time, it's the other way around. Still, this case is important both for the majority's extension of Jackson credits beyond collection cases and their reasoning in doing so.
It's also worth noting that Carl took the lead in trying to help resolve the conflict between Ana and S.S. That was bound to be a plus on his side when the trial court considered the equitable issues here. It never hurts to let the court know that your client is one of the good guys, if he is.
10 Witkin, Summary of Cal. Law (11th ed. 2020) Parent and Child, § 552
Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group) ¶ 6:742.1