In most areas of the law litigants are required to preserve their rights by bringing actions quickly and not waiting. If the litigant waits, the opposing party can claim the defense of laches. According to Fellows v. Fellows, the payor of child support, spousal support, and/or family support in California may not use the defense of laches for non-payment of child support if the payee did not bring an action to enforce the child support in a reasonable time.
FACTUAL BACKGROUND LEADING TO DIVORCE
In 1953, a New York court ordered the father in this case to pay the mother child support. In 2002, the mother filed a motion for payment of child support in the State of California. The father defended the action stating that he had paid child support and asserted the defenses of laches and estoppel based upon the fact that she did not bring the action sooner.
DIVORCE TRIAL PROCEEDINGS
The trial court held that father did not prove that he paid spousal support and that the defense of laches was inapplicable because California Family Code §4502(c) eliminated the laches defense.
APPEAL OF THE DIVORCE COURT PROCEEDINGS
Father appealed the trial court’s decision arguing that California Family Code §4502(c) was enacted after the facts of this case occurred and therefore was inoperable. The appellate court discussed the general retroactive application of laws, “A retrospective law is one which affects rights, obligations, acts, transactions and conditions which are performed or exist prior to the adoption of the statute.” Prior to the enactment of California Family Code §4502 (c) the defense of laches was available and would bar mother’s claim action to enforce child support.
In order for the appellate court to find retroactive intent, the court must find that the legislature intended the statute to apply retroactively. The court cited Garcia as the only case dealing with the retroactive application of California Family Code §4502(c). In Garcia the hearing regarding the enforcement of child support occurred before the effective date of the statute and therefore Garcia denied that child support was enforceable.
The appellate court differentiated the Garcia court based upon the legislative intent of California Family Code §4502 (c). The court believed that the legislature no longer requires the statutes to clearly state that retroactivity is intended, but rather the default position is that when a statute is silent regarding retroactivity, then the statute should be applied retroactively.
If you need a divorce attorney in the Orange County area to address retroactive child support, spousal support and/or family support, contact our law office located in Laguna Hills at (949) 643-5662. Conveniently located off of the 5 and 405 freeway at Lake Forest.
Treviño Law, Inc
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
Please note that the posting of this information does not constitute legal advice for a divorce in Orange County. Facts and circumstances of the dissolution proceedings may alter the required action and analysis in any given family law case.