In Re Marriage of Perez

Opinion

BOREN, P. J.

This is an appeal by a custodial parent, wife Vera Roberts Perez, from an order reducing money in arrears and waiving interest due as to the child support obligation of the absentee parent, husband Richard Joseph Perez. Since the court acted in excess of its jurisdiction in reducing from $5,000 to $2,000 the balance owed and in eliminating the statutorily required interest on the unpaid child support due, we reverse.

On October 15, 1981, pursuant to stipulation by the parties, the court ordered husband to pay child support of $225 per month, payable on the 1st and 15th of each month. Thereafter, in ensuing years, husband’s support obligation was initially reduced due to changed circumstances and then increased to $205 per month, and on May 13, 1993, was increased to $625 per month, payable by wage assignment. On that date, the court also credited husband with $2,500 toward child support arrears of $10,000, calculated as of March 1, 1993.

[80]

The next month, husband requested a modification of the child support order based upon changed circumstances, i.e. loss of his job, and thereafter requested recalculation of the interest due on his unpaid child support. Wife opposed husband’s requested modification of child support and recalculation of interest. At a hearing on August 18, 1993, wife alleged that husband had rental income, two new cars, a recreational vehicle, other recently purchased assets, and a spouse who was now working and helping to support him. Based on husband’s financial declaration, the court determined his income from disability benefits to be $1,140 a month. The court acknowledged that wife had “correctly point[ed] out” that the current balance on the interest due on the child support arrearages was $5,000. The court also observed, however, that for several years from 1981 to approximately 1984 husband was injured on his job and was not working “but neglected to come into court to ... get the money [he owed for child support] reduced.” The court then noted that the amount paid by husband over the years was approximately $20,000, which was the amount of money due if the payments had been promptly made, “so the question now is how much interest is owed.” Although the deputy district attorney, representing wife in the family support matter, urged the court had no equitable power to disregard statutory law as to interest on support arrearages, the court deemed it had limited discretion. On September 23, 1993, the court ordered “that interest on child support arrearages in the sum of $2,000.00 only is due from [husband] to [wife]. Said balance shall be paid at the rate of $100 per month commencing September 7, 1993, one-half on the 7th and 21st, payable through the Court Trustee. If said $2,000.00 is not paid within 20 months, Judgment for $5,000.00 shall enter.” Wife appeals.