In Re Marriage of King

Opinion

PREMO, Acting P. J.

Mary King (now O’Malley) (hereafter, Wife) sought an order determining spousal and child support arrears allegedly due from Gavin King (hereafter, Husband) at various times over a 10-year period (1982-1992). She appeals from the order only insofar as the trial court denied recovery of three child support payments totalling $2,543.75 that were due in June, July, and August 1982. The trial court reasoned: “He’s excused from the payments prior to September 1982 because he truly did not know where [Wife] and the children were and is excused from making those payments for that reason.” We reverse the order because a noncustodial parent’s ignorance of the whereabouts of his children is not a defense to the obligation to pay child support arrears even where the ignorance stems from the custodial parent’s concealment of the children.

Background

In June 1982, the parties signed a stipulated interlocutory decree giving Wife custody of the couple’s three children and Husband reasonable visitation. Wife and the children then moved to England. According to the evidence credited by the trial court, Husband knew that his family had gone to England, but was ignorant of the specific whereabouts. Wife and the children returned to Santa Clara County in September 1982, and the parties attempted a reconciliation of the marriage.

[1252]

Discussion

There is no authority allowing a defense to the obligation to pay child support arrears on the mere basis that the noncustodial parent had no knowledge of his family’s whereabouts.

“Older cases recognized that a custodial parent could be estopped from collecting child support [arrears] from the noncustodial parent upon a sufficient showing the custodial parent interfered with the noncustodial parent’s visitation rights.”

(In re Marriage of Tibbett

(1990) 218 Cal.App.3d 1249, 1251 [267 Cal.Rptr. 642].)

Here, since Wife left the country with the children and took up residence at a place unknown to Husband, she arguably interfered with Husband’s visitation rights by concealing the children’s residence.