Tibbett v. Tibbett

California Court of Appeal Feb 28, 1990 No. No. A046030Published

Before: Channell

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Holding. A custodial parent's concealment of children from the noncustodial parent does not constitute a valid equitable defense to the collection of child support arrearages. The court held that child support and visitation rights are separate, and the child's need for sustenance is paramount under California law.

Issues

Whether a custodial parent's concealment of children from the noncustodial parent estops the custodial parent from collecting child support arrearages.
Whether the trial court erred in excluding child support arrearages for the period of June 1974 through December 1983.

Disposition. reversed

Quotations verified verbatim against the opinion

“we find that concealment does not constitute a defense to a child support action.”

“The Legislature’s clear statement of the law is unconditional, and cannot be interpreted to provide the sort of exception Solberg created.”

Opinion

CHANNELL, J. Respondent Gary Tibbett requested an order determining arrearages for unpaid child support payments in January 1989. On February 28, 1989, the court ruled that Gary must pay arrearages from January 1, 19841 through February 28, 1989, totaling $8,825 at a monthly rate of $245. The court also directed that he continue to pay $75 a month child support for his son, beginning on March 1, 1989.2 On April 20, 1989, the court issued an order memorializing its ruling. Gary’s former spouse, appellant Dolores Tibbett, appeals from the order determining arrearages.3 We reverse the order.

[1251]I. Facts

Gary and Dolores Tibbett were married on July 26, 1969. Before this marriage, Dolores had borne a daughter, Julie, on September 4, 1966. After marrying Dolores, Gary adopted Julie. Dolores and Gary had a son, Gary II (Skip), on July 18, 1970. The marriage dissolved in 1973. Dolores was awarded custody of Julie and Skip.

Dolores remarried and moved with the children to Oklahoma in 1974. Shortly after the move, Gary stopped making the previously ordered child support payments. He tried to find the children several times. According to Gary and his second wife Susan, the district attorney told them that child support payments did not have to be made if Dolores and the children could not be found. Gary did not hear from the children again until Christmas 1982. After December 1982, Gary bought gifts for the children. In July 1987, 3 months before Julie turned 21, Julie became emancipated, ending Gary’s obligation to provide child support for her.

In 1988, Dolores demanded that Gary pay child support arrearages from January 19754 to 1989 and pay current child support for Skip. In January 1989, Gary requested an order determining child support arrearages. In April 1989, the court ordered Gary to pay $8,825 in arrearages and $75 per month in child support.

The trial court refused to fix arrearages for the period from June 1974 through December 1983 and declined to make a specific finding on the issue of concealment.5 Dolores requested a statement of decision. (Code Civ. Proc., § 632.) The court denied the request as untimely.

Tibbett v. Tibbett

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II. Discussion

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