In re Marriage of Comer – Child Support – Concealment
In re Marriage of Comer, 14 Cal. 4th 504, 59 Cal. Rptr. 2d 155 (1996).
NATURE OF THE CASE: This family law case involved a dispute over concealment in the context of child support.
FACTS: H and W were married in 1980 and lived in Florida until 1985 when financial difficulties forced them to relocate to Arizona. W and the children moved to Arizona while H remained in Florida to complete business. H planned to join the family later but instead was served with notice that W had obtained dissolution of their marriage by default judgment in March 1985 in Gila County, Arizona. W was awarded custody of the children subject to reasonable visitation by H. H was also ordered to pay child support of $350 per month per child.
W did not provide H with her new address and instructed her family not to disclose her whereabouts. H failed to make support payments from March 1985 until September 1992. A small amount of money was paid in September and October of 1992. During this 7.5 year period W received AFDC payments and assigned her rights to support payments to AFDC. Eventually W sued for back support and H answered with the affirmative defenses that W had deliberately concealed the whereabouts of the children along with fraud, estoppel, waiver, laches, and the statute of limitations.
During the 7.5 year time, H had sporadic contact with the children by telephone and the mother stopped all direct visitation. There is strong evidence that W was using the children for revenge. H testified regarding his financial straits and the court eventually ordered him to pay a total of $371 in monthly child support for both children. Arrearages of $4,952 were ordered to be paid down at the rate of $50 per month. The court found that no support arrearages were due from March 1985 until September 1992 because W concealed the whereabouts of the children. This appeal resulted.
ISSUE: Is concealment a defense if the children are still of a minor age and in need of the assistance?
RULE OF LAW: No. Concealment is not a defense if the children are still of a minor age and in need of the assistance.
HOLDING AND DECISION: Estoppel is an equitable defense, and like in all equitable defenses justice must be balanced and all the circumstances weighed. The single most important consideration in an action for support is the best interests of the child. The denial of a parent’s rights to custody and visitation does not affect that parent’s obligation to provide child support. As such the defense of concealment is not available when the concealment ends and the child is still a minor.
H contends that had he known where to send the payments he could have provided the funds. We reject this contention. As for the rights of AFDC to recover the monies in arrearages, it has the same rights to collect as the individual obligee and therefore concealment does not estopp it from seeking reimbursement.
DISPOSITION: Reversed and remanded.