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May 7, 2014 by Robert Franklin, Esq.

Just two days ago I posted a piece on Oklahoma Governor Mary Fallin’s veto of legislation that shouldn’t have been controversial. Indeed, so non-controversial was it that it had the unanimous support of both houses of the legislature. That’s the kind of support usually reserved for things like Resolutions to Declare Puppies Cute or to designate one day a year Apple Pie Day.

The bill would have allowed non-custodial parents who’ve been shut out of their children’s lives by the custodial parent for more than six months to request child support to be suspended during the time they’ve been refused access. Such a law would of course encourage mothers to allow fathers to see their kids, which many think is a good idea. Not Fallin. She deep-sixed the bill with nary a word as to why.

So it’s an interesting coincidence that this decision was rendered by the Second Court of Appeals in California just four days after Fallin’s veto.

Back in the 1980s, John and Vladixa Boswell were married and had two children, Denise and John, Jr. The Boswells divorced when Denise was five and John, Jr. was three and of course the court gave custody to Vladixa and ordered John, Sr. to pay child support. He did for two months, but then Vladixa took the children and disappeared. She changed their names so John, Sr. couldn’t locate them which indeed he did not. He had no idea or where they were, so he discontinued paying support. After all, how was he to do that?

That was in 1985. Thirteen years later, when Denise had attained her majority and John, Jr. was 16, Vladixa showed up and handed their son over to John, Sr. who cared for the boy until he too became an adult.

Fifteen years after that, in 2013, when Denise and John, Jr. were in their 30s, Vladixa decided she wanted the child support John, Sr. had been ordered to pay. So she sued him for all the support he hadn’t paid, plus interest. In California, the interest rate at the time was a hefty 10% per annum.

Now, we all know that neither the payment of child support nor the exercise of visitation is contingent on the other. Just because Mom doesn’t allow Dad to see the kids doesn’t mean he can stop paying. And just because he doesn’t pay doesn’t mean she can stop his access. Such at any rate, is the black-letter law. As a practical matter of course, if Dad can’t pay and is in prison or has his driver’s license suspended, his ability to see the children may be a tad impaired - but hey! – de minimus non curat lex, right? The law doesn’t pay attention to trifles.

So we’d all expect that Vladixa would have walked away from court with the $92,735 she was owed in support and interest, plus attorney fees. She probably expected the same, but it was not to be. The trial court rejected her claim and the appellate court agreed. They did so for reasons that every attorney should know and apply in situations nowhere nearly as egregious as the Boswell’s.

It seems that good old fashioned equity law applies in this situation. Both courts ruled that family law is a matter of equity and therefore, “when one seeks equity” as Vladixa did, “one must do equity.” That means that, if a litigant asks a court to give her an equitable remedy, she must deserve it. In order to obtain an equitable remedy, the litigant must come to court with “clean hands,” i.e. she must not have herself committed an equitable wrong in the case.

But of course that’s exactly what Vladixa had done. She’d intentionally kept the children from their father, and, having done so, was in no position to ask the court of equity to give her an order for him to pay.

And both courts were emphatic about their rulings - no nuanced legal niceties for them.

This is another frivolous family law appeal. As we shall explain, given well known appellate rules, it was "dead on arrival" at the appellate courthouse. (See Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449.) The family law court is a court of equity and fairness. Here the trial court, exercising its broad equitable discretion, refused to enforce a 25 year old judgment for child support arrearages because appellant (mother) concealed the children for 15 years. It specifically ruled that doing so would be "inequitable," that the request was "untimely," "unjust" and "[t]his is just a terribly egregious situation."…

The only issue here is whether the trial court should have used judicial power to achieve an "inequitable result." (Kendall-Jackson Winery Ltd. V. Superior Court (1999) 76 Cal.App.4th 970, 985.) It is sufficient to observe that mother did actively conceal the children. This equitably estops her from enforcing a child support judgment.

The trial court found that mother had been "unjust" in her unilateral decision to remove father from the children’s lives. This is tantamount to a finding of "unclean hands." We reiterate our statement in Keith G. v Suzanne H. (1998) 62 Cal.App.4th 853, 862: "These are some of the dirtiest hands we have seen."

As expressly indicated by the trial court, this was "terribly egregious." "The "clean hands" rule is of ancient origin and given broad application. It is the most important rule affecting the administration of justice… We hold that a family law court, in the exercise of its broad equitable discretion, and upon a finding of "unclean hands," may decline to enforce a child support arrearage judgment.

I urge every family lawyer to enlarge that last sentence and put it on his/her wall for future reference. Face it, custodial parents keeping children from non-custodial parents is as common as dirt. According to this appellate court, doing so “equitably estops her from enforcing a child support judgment.” That means she’s legally prevented from collecting. To put it mildly, that’s a concept and this is a case that many a lawyer can rely on for the proposition that, in fact, child support and visitation aren’t independent of each other at all.

It’s important to understand what this court didn’t say. It didn’t say that equity prevents Vladixa from recovering because she waited too long to file suit. It didn’t say she lost because she kept the kids concealed for as long as she did. No, “active concealment” of the kids was all it took to take John, Sr. off the hook. How long might that be to trigger a similar ruling in a different case? There’s no way of knowing, but I urge attorneys to put this ruling to the test.

Of course there are limits to this ruling. Certainly the extreme nature of Vladixa’s behavior strongly encouraged the trial judge to make the ruling he/she did. But the principle remains – to receive equity, one must do equity, even when the issue is child support.

Who’d a thunk it?

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National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

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#Childsupport, #arrearage, #equitableestoppel, #CaliforniaCourtofAppeals, #California

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+1 #1 mom that kidnapped kidslewisx2000 2015-01-23 13:58
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