Filed 3/10/98

 

CERTIFIED FOR PUBLICATION

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re the Marriage of KEITH G. and SUZANNE H.

 

 

 

KEITH W. G.,

Appellant,

 

v.

SUZANNE E. H.,

Respondent.

 

2d Civil No. B110278

(Super. Ct. No. D 244940)

(Ventura County)

 

    What is good for the goose is good for the gander. Here what was bad for the goose is now bad for the gander. A final 1986 California judgment requires Missouri resident Keith G. (father) to pay $253 per month to Suzanne H. (mother) for the support of their minor son, (B.). Father ignored this obligation for approximately eight years and owes mother approximately $25,000 in child support. In 1994, B. moved to Missouri to live with father. Father obtained a Missouri court order requiring mother to pay $277 per month in child support. He sought civil enforcement of the order in California under the Uniform Reciprocal Enforcement of Support Act (URESA). (Fam. Code,  4800, et seq.)1 Mother argued she was entitled to a setoff of approximately $25,000 of arrearages owed pursuant to the 1986 California judgment. The trial court agreed.

    The Attorney General, representing father, contends on appeal that the setoff is an impermissible modification of the Missouri order that violates both URESA and the Full Faith and Credit for Child Support Orders Act (FFCCSOA). (42 U.S.C.A.,  1738B.) As we shall explain, the trial court's order enforcing a judgment for child support but granting a setoff is not only rooted in common sense and fairness, it is also consistent with constitutional, statutory, and decisional law. We affirm.

Facts

    Father and mother married in 1981. B. was born in 1982. The parties separated in November 1985. Mother and B. moved from Missouri to California where, in December 1985, mother filed a petition to dissolve the marriage. Father's motion to quash service of process for lack of personal jurisdiction was denied and he did not participate further in the action. On October 31, 1986, mother obtained a California judgment dissolving the marriage, awarding her sole custody of B. and requiring father to pay $253 per month for B.'s support.

    Meanwhile, father filed a petition for dissolution in Missouri in January of 1986. He obtained a judgment in September 1986 that awarded custody of B. to him. The judgment made no provision for B.'s support.

    Between November 1985 and the summer of 1991, mother had continuous physical custody of B. and received virtually no voluntary child support directly from father. She was able to obtain $8,600 in wage garnishments. In 1991, B. visited his paternal grandparents in Missouri and was not returned to California on schedule. Mother forced B.'s return by posting a $5,000 bond and obtaining a writ of habeas corpus from a Missouri court.

    In connection with the habeas corpus proceeding, and a consolidated action for payment of child support, the Missouri Court of Appeals ruled that the 1986 California judgment was unenforceable in Missouri on the theory that California lacked jurisdiction over B. when the petition for dissolution was filed. It returned B. to mother's "temporary" custody but refused to order father to pay the arrearages due under the California judgment. We need not opine on the correctness of this opinion.

    In 1992, father and mother agreed that B. would move to Missouri to live with father. By this time, father owed $24,328 in child support pursuant to the California judgment. In early 1994, father obtained an order from the Missouri court requiring mother to pay monthly child support of $277. Mother did not pay child support and did not seek a modification of the Missouri order. B. is not receiving public assistance for his support and the dispute only concerns father and mother.

    Father sought civil enforcement of the Missouri order in California under URESA. ( 4849.) Ventura County registered the order in July 1996 and sought a wage assignment against mother for ongoing support and arrearages. ( 4851.) Mother argued she was entitled to a setoff for arrearages under the 1986 California judgment. The trial court agreed, finding that the equities weighed in favor of mother and that a setoff for arrearages under the California judgment would not modify the Missouri order. The Attorney General, representing father, appeals.

Setoff for Accrued Child Support

    Under URESA, a foreign support order that is registered in California, "shall be treated in the same manner as a support order issued by a court of this state. It has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a support order of this state and may be enforced and satisfied in like manner." ( 4853, subd. (a).) In an action to enforce a registered foreign support order, "there shall be no . . . cross-complaints, and the claims or defenses shall be limited strictly to the identity of the obligor, the validity of the underlying foreign support order, or the accuracy of the obligee's statement of the amount of support remaining unpaid unless the amount has been previously established by a judgment or order." ( 4853, subd. (b).) Here, the amount of unpaid child support under the Missouri order had not been judicially established before the trial court entered the order currently on appeal.

    In URESA actions, as in all other proceedings to enforce child support orders, the trial court may not modify or terminate the support order "as to an amount that accrued before the date of the filing of the notice of motion . . . to modify or terminate." ( 3651, subd. (c).)

    Father contends that the setoff is an impermissible modification of support arrearages and that the trial court's order violates section 4853, subdivision (b) because a setoff is analogous to a cross-complaint. Mother denies that any modification has occurred, and contends that the setoff permitted here is not analogous to a cross-complaint because it is a liquidated debt and father's liability has been established. We conclude that mother is correct.

    When an out-of-state judgment or order for child support is registered in California, it becomes a California judgment for the arrearages and is subject to the same defenses as any other judgment. ( 4853; In re Marriage of Chester (1995) 37 Cal.App.4th 1624, 1629-1630.) In an action to enforce such a judgment, the trial court lacks jurisdiction to reduce or modify support arrearages. (In re Marriage of Perez (1995) 35 Cal.App.4th 77, 80.)

    However, the trial court does have discretion to determine the manner in which the judgment will be enforced. (In re Marriage of Trainotti (1989) 212 Cal.App.3d 1072, 1075-1076; Jackson v. Jackson (1975) 51 Cal.App.3d 363, 366-367.) Accordingly, the trial court may give credit for past overpayment (In re Marriage of Peet (1978) 84 Cal.App.3d 974, 980-981), "permit only partial enforcement or . . . quash, in toto, a writ of execution directed against a parent in arrearage who, during the period in question, has had the sole physical custody of the child[,]" (In re Marriage of Trainotti, supra, 212 Cal.App.3d at p. 1075), or take into consideration "whether the debtor had satisfied or otherwise discharged the obligation imposed by the original order. [Citations.]" (Id.) In addition, an obligor is entitled to credit for amounts paid under a support order from another state. ( 4840.)

    The setoff requested by mother stands on the same footing as a credit for payments or overpayments under a foreign support. As the court noted in Trainotti: "The instant case is little different from any other instance in which a trial court, in determining the amount of a judgment is required to credit the judgment debtor with any setoff to which he is entitled . . . ." (In re Marriage of Trainotti, supra, 212 Cal.App.3d  at p. 1075.)

    A setoff ". . . is founded on the equitable principle that 'eiher party to a transaction involving mutual debts and credits can strike a balance, holding hiself owing or entitled to the net differennce . . . .' [Citation.]" (Granberry v. Islay Investments (1995) 9 Cal.4th 738, 744.) Setoffs are routinely allowed in actions to enforce a money judgment. (Brienza v. Tepper (1995) 35 Cal.App.4th 1839, 1847; Salaman v. Bolt (1977) 74 Cal.App.3d 907, 918; Margott v. Gem Properties, Inc. (1973) 34 Cal.App.3d 849, 854.) Indeed, "The offset of judgment against judgment is a matter of right absent the existence of facts establishing competing equities or an equitable defense precluding the offset." (Brienza v. Tepper, supra, 35 Cal.App.4th at p. 1848.)

    The Family Code does not expressly prohibit a trial court from allowing a setoff for obligations under conflicting support orders. Nor has any California published opinion considered whether such a setoff should be allowed.

    Williams v. Williams (1970) 8 Cal.App.3d 636, rejected a non-custodial parent's request to unpaid child support against expenses he incurred for the maintenance of community property, one-half of which should have been paid by the custodial parent but were not. (Id. at pp. 638-639.) The Williams court reasoned that child support "is not an 'ordinary debt' but rather a court-imposed obligation to provide for one's child[,]" and concluded that allowing such a setoff would violate former Civil Code section 139 as a retroactive alteration of accrued, unpaid child support. (Id. at p. 639.) In addition, there were "other significant reasons" to deny the setoff. (Id. at p. 640.) First, a cross-complaint involves "cross-demands by one party against the other." (Id.) Child support, by contrast is "a debt owing to the child . . . ." (Id.) Second, the Williams court concluded that, "the very nature of child support gravitates against the allowance of the setoff sought. Such support is strongly favored in the law and statutes providing for it are to be liberally construed to promote their purpose of protecting the family. [Citations.] To allow the setoff sought by defendant would frustrate both this purpose and the trial court's support order, since it would allow him to use child support funds to maintain property held in common by him and plaintiff." (Id. at p. 640; see also In re Marriage of Comer, supra, 14 Cal.4th 504, 517 ["It is well settled that a child support obligation '. . . runs to the child and not the parent. [Citation.]' (In re Marriage of McCann (1994) 27 Cal.App.4th 102, 108 [32 Cal.Rptr.2d 639] . . . .)"].)

    Williams is plainly distinguishable from the present case. In Williams, the father sought a setoff of a debt for unpaid child support against a community property debt owed to him by the mother. Here, mother seeks a setoff from her obligation to pay child support for B. against father's obligation to pay accrued child support.

    We reject father's argument that a setoff here would function as a retroactive modification of mother's accrued support obligation. ( 3651, subd. (b); In re Marriage of Perez, supra, 35 Cal.App.4th at p. 80.) Allowing the setoff does not reduce or eliminate the amount of the arrearages. The setoff only affects the manner of collection in California. Allowing the setoff would not frustrate the purpose of either support order. Instead, the setoff exchanges support payments by mother for those owed by father.

    A setoff differs significantly from the cross-complaints that are barred by section 4853, subdivision (b). A cross-complaint is a separate pleading in which a defendant alleges affirmative claims for relief against a plaintiff or a third party who is related to the underlying lawsuit. (Code Civ. Proc.  425.10, 426.10, 426.30.) The claims alleged in a cross-complaint may be factually related to the initial complaint, or they may be factually distinct. (Code Civ. Proc.  426.30, 428.10.) The cross-complaint initiates, rather than terminates, litigation between the parties. Section 4853 properly bars these pleadings to streamline the enforcement of child support orders by preventing the parties from raising unrelated claims to reduce or eliminate their support obligations. By prohibiting the consideration of factually or legally unrelated claims, section 4853 focuses the attention of the parties and of the court on the most important issue: the financial support of a child.

    A setoff, by contrast, is not a claim for relief. It occurs at the end of litigation and "is a means by which a debtor may satisfy in whole or in part a judgment or claim held against him out of a judgment or claim which he has subsequently acquired against his judgment creditor. The right exists independently of statute and rests upon the inherent power of the court to do justice to the parties before it. [Citations.]" (Salaman v. Bolt, supra, 74 Cal.App.3d at p. 918.)

    Allowing a setoff among conflicting child support orders poses little risk of prolonging URESA enforcement actions, of distracting judicial attention from the support issue, or of jeopardizing a child's financial security by reducing support to extract payment of an unrelated debt. This is especially true here, because B. is not receiving public assistance. Accordingly, the prohibition against cross-complaints contained in section 4853, subdivision (b) does not prevent the trial court from allowing a setoff.

Full Faith and Credit

    Father contends that, even if a setoff is available under URESA, allowing it here violates the Full Faith and Credit for Child Support Orders Act (FFCCSOA). (28 U.S.C.A.,  1738B.) We disagree. FFCCSOA requires that each state, "(1) shall enforce according to its terms a child support order made consistently with this section by a court of another State; and [] (2) shall not seek or make a modification of such an order except . . . " in circumstances not present here. (28 U.S.C.A.,  1738B, subd. (a).) A modification is, "a change in a child support order that affects the amount, scope, or duration of the order and modifies, replaces, supersedes, or otherwise is made subsequent to the child support order." (28 U.S.C.A.  1738B, subd. (b).)

    The order at issue here neither violates FFCCSOA nor the more general constitutional principle of full faith and credit. Under that order, mother owes monthly child support for B. of $277, the amount determined by the Missouri court. The order affects only the manner in which mother pays her obligation, not its amount, scope or duration. Accordingly, the trial court's order does not violate FFCCSOA.

    As the United States Supreme Court noted in its most recent opinion on the subject: "Full faith and credit . . . does not mean that States must adopt the practices of other States regarding the time, manner, and mechanisms for enforcing judgments. Enforcement measures do not travel with the sister state judgment . . . ; such measures remain subject to the even-handed control of forum law." (Baker v. General Motors Corp. (1998) ___ U.S. ___, [98 Daily Journal D.A.R. 383, 387].)

    Under California law, the trial court has discretion to determine the appropriate means of enforcing a judgment for child support. (In re Marriage of Schenck (1991) 228 Cal.App.3d 1474, 1479; In re Marriage of Sandy (1980) 113 Cal.App.3d 724, 728.) In exercising that discretion, the trial court can, and should take the equities of the situation into account. (In re Marriage of Trainotti, supra, 212 Cal.App.3d at p. 1075; In re Marriage of Utigard (1981) 126 Cal.App.3d 133, 140.)

Fairness and Equity

    Here, mother single-handedly supported B. for almost eight years. While she had custody of B., father ignored his legal and moral obligation to support his son. (In re Marriage of Hyon & Kirschner (1991) 231 Cal.App.3d 449, 455.) Now father has custody and, after years of forcing mother to endure the financial hardship of single parenthood, he asks the court to order mother to pay child support so that he can escape the fate which he inflicted upon her. Allowing him to do so would be unfair. "'[H]e who comes into equity must come with clean hands.'" (Garamendi v. Mission Ins. Co. (1993) 15 Cal.App.4th 1277, 1289, quoting 11 Witkin, Summary of Cal. Law, Equity, (9th ed. 1990)  8, p. 684.) These are some of the dirtiest hands we have seen. "'He who seeks equity must do equity.'" (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 576; see also In re Marriage of Plescia (1997) 59 Cal.App.4th 252, 257.) We presume that as soon as father pays the arrearages owed pursuant to the 1986 California judgment, the trial court will require payments under the 1994 Missouri judgment.

    After weighing the equities, the trial court wisely fashioned a common sense remedy that does not harm B. and does not reward father for his recalcitrance. The overall policy of the law is fairness. (Gardiner Solder Co. v. SupAlloy Corp., Inc. (1991) 232 Cal.App.3d 1537, 1543.) The trial court's order denying enforcement can only be described as fair.

 

    The order is affirmed. Costs to respondent.

    CERTIFIED FOR PUBLICATION.

                   YEGAN, J.

We concur:

    STONE, P.J.

    GILBERT, J.

 

Manuel J. Covarrubias, Court Commissioner

 

Superior Court County of Ventura

 

______________________________

 

 

 

    Daniel E. Lungren, Attorney General; Roderick E. Walston, Chief Assistant Attorney General; Carol Ann White, Statewide Child Support Coordinator, and Mary A. Roth, Deputy Attorney General, for Appellant.

 

    John Brown of Brown & Martinez, for Respondent.


Footnotes

1     All statutory references are to this code unless otherwise stated.