In Re Marriage of Hancock

Opinion

KINGSLEY, J.

The parties were married in 1947; they have four children; the oldest of whom—Am—is the subject matter of the present appeal. They were divorced in 1962, the interlocutory decree

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providing (in pertinent part) as follows: “It is further ordered that defendant pay to Plaintiff for the support of said minor children the sum of $150.00 per month per child or a total of $600.00 per month payable one-half on the 1st and one-half on the 15th of each and every month commencing February 1, 1962, and continuing until further order of the Court.”

In July of 1970, after proceedings before Judge Cox of the trial court, which had disclosed that Am was living, at least part time, away from the home of his legal custodian (his mother) and was having scholastic difficulties, the trial court made an order modifying the earlier decree in the following terms: “Child support payments for Arn D. Hancock are terminated forthwith. The Court finds since April, 1969, when he left the

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family home with petitioner’s consent he was self-supporting or capable of being self-supporting.”

Thereafter the husband (appellant here), taking the position that his support obligation for Arn had terminated as of April 1969, deducted from subsequent payments to his wife the sum of $2,250, representing the support payments made to her on Am’s account, between April of 1969 and July of 1970. In the proceeding herein involved, Judge Otis ruled that such deduction was improper and ordered the husband to pay off the arrearage.

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On this appeal, the husband relies on subdivision (b) of section 4700 of the Civil Code, which subdivision reads as follows: “(b) When a court orders a person to make specified payments for support of a child during the child’s minority, or until such child is married or otherwise emancipated, the liability of such person terminates upon the happening of such contingency. If the custodial parent or other person having physical custody of the child, to whom payments are to be made, fails to notify the person ordered to make such payments, or the attorney of record of such person, of the happening of such contingency, and continues to accept support payments, such person must refund any and all moneys received which accrued after the happening of such contingency, except that such overpayments must first be applied to any and all support payments which are then in default. The court may, in the original order for support, order the custodial parent or other person to whom payments are to be made to notify the person ordered to make such payments, or his attorney of record, of the happening of such contingency.”