Marriage of Smith

Filed 8/22/06 Marriage of Smith Ca3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Lassen)

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In September 2001, Lora Smith sought enforcement of child and spousal support orders issued in the dissolution of her marriage to Terry Smith in 1985. She appeals from the portion of the trial court's 2003 order denying, on grounds of laches, her motion to enforce spousal support arrearages totaling $7,471.98. Lora^[1] maintains the laches defense was unavailable to Terry at the time of the 2003 hearing under a 2002 amendment adding subdivision (c) to Family Code section 4502 (hereafter section 4502(c)).^[2] The California Supreme Court has recently answered the pivotal question in this case: whether section 4502(c) applies retroactively. (In re Marriage of Fellows (July 20, 2006, S127874) ___ Cal.4th ___ [2006 Cal. Lexis 8764] (Fellows).) As the court answered the question in the affirmative, we shall reverse the order denying enforcement of the spousal support arrearages.

FACTUAL AND PROCEDURAL BACKGROUND

Terry and Lora dissolved their five-year marriage in October 1985 in Sacramento. Heather, the only child of the marriage, turned 18 in 2002. In February 1985, the court ordered Terry to pay $100 per month in child support. It also adopted the recommendation of Family Court Services giving Terry and Lora joint legal custody of Heather, Lora primary physical custody, and Terry reasonable visitation. A May 1985 order set spousal support at $375 per month. At the hearing on the arrearages, Terry's attorney represented that Terry did not know about the spousal support order until Lora sought to enforce it.

Terry saw Heather only a few times after the marriage dissolved. He testified that Lora thwarted his efforts at regular visitation. Terry stated that Lora moved away from Sacramento sometime in 1985 without informing him. Lora testified that she did not attempt to conceal herself and Heather from Terry and left the Sacramento area for only five months. In any event, the next time Terry saw Heather was in 1999, when her grandmother arranged a visit.

Terry obtained physical custody of Heather in 2001. At that point, Lora elected to enforce the child and spousal support orders. The Lassen County District Attorney's Office registered the child support order in Lassen County on July 25, 2001. The supporting papers indicated that Terry was to send payments on arrearages to the Lassen County Child Support Agency. Terry appeared in propria persona and unsuccessfully opposed registration.

On December 31, 2001, the district attorney sought an order fixing the amount of arrearages in child support and spousal support. Both parties' points and authorities focused almost exclusively on the child support arrearages with little, if any, mention of the spousal support claim.

In the response to the order to show cause filed by the district attorney, Terry asked the court to set aside the child support arrearages based on fraud, estoppel, laches and unclean hands. He also declared on information and belief that Lora remarried in 1985 or 1986.

Lora responded in papers filed in September 2002 that defenses of lack of diligence and estoppel due to concealment were unavailable to Terry. Specifically, she argued that there was no concealment and Terry had, in fact, demonstrated little effort to see Heather. Lora also cited cases in support of the proposition that the defense of estoppel based on concealment was not available when the concealment ended during the child's minority. She noted that lack of diligence was no longer a defense after the Legislature enacted section 4502 effective January 1, 1993. At the same time, Lora acknowledged that the defense of laches remained, with â€