In Re Marriage of Daves

California Court of Appeal Sep 15, 1982 No. Civ. 24585Published

Before: Brown (Gerald)

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Holding. The court held that a custodial parent who conceals the children's whereabouts from the non-custodial parent for an extended period, while failing to request support, is estopped from recovering child support arrears for that period.

Issues

Whether the trial court erred in holding an evidentiary hearing on the motion to quash without adequate notice.
Whether the trial court erred in finding the custodial parent estopped from collecting child support arrears due to concealment of the children.
Whether the trial court had authority to award attorney fees to the non-custodial parent.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the court could properly find Charlene was estopped to recover support payments for the period she concealed from Phillip her whereabouts and the children’s location.”

“In the absence of some indication .. . she desired further support payments, he was not required to track her down in order to press that money upon her.”

[9]

Opinion

BROWN (Gerald), P. J.

Charlene Daves appeals an order granting Phillip Daves’ motion to quash writ of execution.

The parties divorced in 1969. The court awarded Charlene custody of the parties’ two minor children, with reasonable visitation to Phillip. The court ordered Phillip to pay $75 support monthly for each child. Both parties remarried.

Phillip visited the children regularly and paid child support timely until Charlene moved to Florida with the children on February 6, 1971, without telling Phillip or giving him a forwarding address. Despite Phillip’s request, Charlene’s mother would not tell Phillip the location of Charlene and the children. In July 1971, Phillip asked the court to suspend child support payments because Charlene had disappeared with the children; however, Phillip’s motion was taken off calendar because he could not find Charlene to serve her with process.

On September 20, 1979, Charlene asked Phillip to pay child support. Phillip has made child support payments since October 1, 1979.

On October 6, 1980, the court granted Charlene a writ of execution against Phillip for $20,619.64 for unpaid accrued child support from January 1971 through September 1979. Phillip asked the court to quash the writ of execution. Both parties filed declarations and testified at the hearing on Phillip’s motion. After hearing, the court quashed the writ, finding Charlene deliberately removed the children to prevent Phillip from visiting them. The court also awarded Phillip $300 attorney fees.

Charlene contends the court erred in holding an evidentiary hearing on Phillip’s motion to quash without adequate notice to her. She asserts her mother, sister and brothers were not available to testify at the hearing, because of such inadequate notice. However, the record shows the court properly held an evidentiary hearing. Phillip timely filed and served his motion to quash the writ of execution. Under San Diego Superior Court domestic law and motion rule III(b)(7), motions are generally heard on declarations; however, “in exceptional cases where the issues cannot be determined without the taking of evidence, the matter may be trailed to the foot of the calendar for the taking of

In Re Marriage of Daves

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