BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
SB 1082 S
Senator Morrow and Ducheny B
As Amended April 25, 2005
Hearing Date: April 26, 2005 1
Family Code 0
DSH:cjt 8
2
FOR VOTE ONLY
SUBJECT
Child Custody, Visitation and Support Obligations:
Modification for Activated, Deployed Military Personnel
DESCRIPTION
This bill would facilitate the process for activated
reservists and National Guard members to seek a
modification of their child support orders prior to
deployment out-of-state. The bill would, additionally, if
the court cannot set the matter for hearing prior to the
deployment, preserve the service member's ability to modify
the support order retroactively to the date of deployment
or date of filing and service of the modification petition,
whichever is later, to reflect any change in income
resulting from the activation to military service.
To remind service members that their support obligations
will continue at their current rate unless modified by
court order, the bill would require the Department of Child
Support Services (DCSS) to work with all branches of the
military and the National Guard to ensure that information,
including the appropriate court forms, is made available at
all mobilization stations or other appropriate locations
service members typically receive similar types of
information and counsel prior to deployment. The bill
would also require DCSS to develop and similarly distribute
a form which, if completed by service members who have a
case through the local child support agency, will require
(more)
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the local agency to bring a motion to modify the order,
without the need for the service member to be present.
For service members who do not utilize either of these
procedures to seek modification of their support orders,
the bill would provide that interest does not accrue on any
unpaid child support that would not have been due and owing
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had the service member modified the order to reflect his or
her reduced military income. The bill would also prohibit
penalties from being assessed against that same portion of
unpaid support.
The bill would additionally provide that the fact of a
person's deployment out-of-state, in and of itself, cannot
be used by the court as a ground for modification of
custody or visitation.
BACKGROUND
With the war in Iraq and the activation of many reservists
and members of the National Guard, there has been increased
attention paid to the effects of out-of-state or overseas
deployment on service members and their families. In
December 2003, Congress updated the former Soldiers' and
Sailors' Civil Relief Act, and enacted the new
Servicemembers Civil Relief Act (SCRA), "to provide for,
strengthen, and expedite the national defense . . . to
enable [service members] to devote their entire energy to
the defense needs of the Nation; and to provide for the
temporary suspension of judicial and administrative
proceedings and transactions that may adversely affect the
civil rights of service members during their military
service." (50 U.S.C. Appendix Section 502.) The SCRA, like
its predecessor, among other things, prohibits default
actions against service members deployed out of the United
States, limits the amount of interest that may be assessed
on debts that accrued prior to deployment, and requires a
stay of proceedings if the service member's military duty
materially affects his or her ability to appear.
However, the SCRA does nothing to address a service
member's ongoing child support obligation. For many
service members, their income is reduced when activated to
military service. A child support order does not change to
reflect reduced income, however, unless action is taken to
seek a court-ordered modification. Whether it is because
of the difficulty of preparing a court filing and obtaining
a hearing before deployment, or because the service member
is not aware of the ability or need to modify the order,
there has been increased attention of late to service
members who return to California with substantial child
support arrears that accrued solely because they were
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serving their country and earning too little to meet their
existing support obligation.
This bill was heard on April 19. At the request of this
Committee, the author agreed to amend the bill to reflect
most of the suggestions raised in this Committee's prior
analysis, and to examine the issues raised by the Family
Law Section of the State Bar. This analysis reflects the
amendments taken by the author to address both the
committee's comments and some of the suggestions of the
State Bar. (See Comment 6, beginning on page 9.)
CHANGES TO EXISTING LAW
1. Retroactive Modification of Support Orders
Existing law prohibits a court from modifying a child
support order retroactive to any period of time prior to
the filing and service of a motion or order to show cause
for modification. (42 U.S.C. 666(a)(9), known as the
"Bradley amendment," Family Code Section 3651.)
Existing law authorizes, but does not require, a court to
make an order retroactive to the date of filing and
notice of the motion or order to show cause for
modification. If, however, the modification is due to
the unemployment of the support obligor or obligee, the
court is required, absent a finding of good cause, to
make the order retroactive to the date of unemployment or
the date of service, whichever is later. (Family Code
Section 3653.)
This bill would require the Judicial Council to create a
form notice of activation and request for modification
which a service member could use to request a
modification hearing based on the change in income as a
result of the activation and deployment. This form may
be used in lieu of the standard order to show cause or
notice of motion.
This bill would require the court, when modifying a
support obligation based on a change in income
attributable to activation and deployment, to make the
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order retroactive to the date of service of the pleading
on the other party or the date of activation, whichever
is later. Upon a finding of good cause and reasons
stated on the record, the court may order that the
modification is not retroactive. Good cause may include
a finding by the court that the delay in seeking the
modification was not reasonable under the circumstances.
2. Relief from Child Support Interest and Penalties
Existing law provides that interest commences to accrue
on a money judgment on the date of entry of judgment. If
a money judgment is payable in installments, interest
accrues as to each installment on the date the
installment becomes due. Interest accrues at the rate of
10 percent per year. (Code of Civil Procedure Sections
685.010 and 685.020.)
Existing law authorizes the court to assess penalties for
nonpayment of support in egregious instances of
noncompliance with a child support order. (Family Code
Section 4720 et seq.)
This bill would provide that, for obligor service members
who do not use the streamlined modification process
created by this bill, interest nevertheless does not
accrue on the amount of support that would not have been
owed had the obligor obtained a modified support order to
reflect his or her reduced income as a result of being
activated to military service and deployed out-of-state.
Upon a finding by the court that good cause did not exist
for the service member's failure to seek, or delay in
seeking the modification, this bill would permit the
court to order that interest shall accrue as otherwise
authorized by law.
This bill would, absent a finding of good cause, also
prohibit penalties from being imposed with regard to
unpaid support that accrued because an activated,
deployed service member failed to modify his or her
support order prior to deployment to reflect his or her
reduced income.
3. Compromise of Arrears
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Existing law requires the Department of Child Support
Services (DCSS) to establish a program for the compromise
of child support arrears and interest owed to the state.
The amount of the compromise shall take into account the
obligor's ability to pay and must be in the best interest
of the state. (Family Code Section 17560.)
This bill would declare that, absent a finding of good
cause to the contrary, a compromise shall be in the best
interest of the state in the following circumstance: a)
the support obligor was a reservist or National Guard
member who was activated and deployed out-of-state; b)
the service member failed to modify the support order to
reflect the reduced income he or she was paid by the
military; c) arrears accumulated during the period of
deployment; and d) the compromise is the amount of
support that would not have accrued if the order had been
appropriately modified. The bill would require DCSS to
develop the necessary rules to implement this provision
within 90 days of the effective date of this bill.
4. Stay of Proceedings
Existing law requires the court, upon application of a
service member, or on its own motion, to grant a stay of
90 days or more in any civil action or proceeding at any
time prior to final judgment if certain conditions are
satisfied. (Servicemembers Civil Relief Act, 50 U.S.C.
Appendix Section 522.) The application shall include a
letter setting forth how the current military duty
requirements materially affect the service member's
ability to appear, or a letter from the commanding
officer indicating that the service member's military
duty prevents appearance and that the military leave is
not authorized at that time. (Id.)
Existing law provides that, upon expiration of the
mandatory stay, the court may grant an additional stay,
upon application of the service member demonstrating that
continuing military duty will have a material affect on
his or her ability to appear. If the court refuses to
grant the additional stay, it shall appoint counsel to
represent the service member. (Servicemembers Civil
Relief Act, 50 U.S.C. Appendix Section 522.)
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This bill would restate the requirements of federal law,
by requiring the court to grant a stay of the motion or
order to show cause for modification if the service
member's application cannot be heard prior to deployment.
The requirements for a stay would be consistent with the
time lines and conditions for granting a stay set forth
in the federal Servicemembers Civil Relief Act. The bill
would further provide that if an additional stay is
requested, and the court exercises its power not to grant
it, the court shall comply with the federal requirement
to appoint counsel for the service member.
5. Modification of Custody and Visitation Orders
Existing law provides that a final custody or visitation
order may be modified by the family court only if some
significant change in circumstances indicates that a
different arrangement would be in the child's best
interest. (Marriage of LaMusga (2004) 37 Cal.4th 1072,
1088; Burchard v. Garay (1986) 42 Cal.3d 531, 535.)
This bill would provide that a party's absence from the
home or failure to comply with a custody or visitation
order may not, in and of itself, justify a modification
of the order if the reason for the absence or failure is
the party's activation to military service and deployment
out-of-state.
COMMENT
1. Stated need for bill
According to the authors, reservists and National Guard
personnel are being activated to military service with
little time to take care of the many pressing issues that
they are leaving behind. The authors comment that "those
with family law issues cannot get into court before
deployment given the amount of time between orders and
the shipping out date. If they experience a reduction in
income due to the activation and fail to modify their
support orders to reflect this reduced income, they may
return from active duty with a substantial amount of
arrears having accrued."
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The authors' staff points out that SB 1082 would not
change the basic rules for calculation of the amount of
support due and owing. In other words, if the activation
does not affect the amount of the service member's
income, no modification would be called for under the
child support guideline.
The authors also express a concern that in the service
member's absence, court orders have been made
inappropriately altering custody and visitation
arrangements without giving the service member an
opportunity to be heard on the issue.
2. Support for the bill
The Armed Forces Retirees Association of California
(AFRAC), the sponsor of SB 1082, echoes the authors'
point, noting that "for those reservists who are paying
child support, complications ensue if they do not make
the necessary accommodations related to their reduced
income while they serve and they come home to legal
problems." AFRAC notes that federal law prohibits the
modification of a support order for the time period prior
to the filing and service of a request for modification.
As a result, service members who fail to change their
support order at the front end do not have an opportunity
when they return to civilian life to reduce the amount
that they should have owed in the prior period.
Committee staff was also contacted by 265 individuals
associated with the Military Parents Alliance expressing
their strong support for the bill. These individuals
comment that SB 1082 "will help correct a terrible
injustice currently faced by activated reservists and
National Guardsmen who are noncustodial parents. Today
these service personnel can return from deployment
overseas to find themselves hopelessly in arrears on
child support or even facing jail. Others are taken
advantage of terribly in custody matters while they are
deployed."
3.Balancing the burdens imposed on the obligor and the
obligee
Where a reservist gets short notice of his or her
imminent deployment to Iraq, the service member with
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numerous obligations, including family obligations, may
find it so overwhelming that he or she cannot possibly
cope with it all, thus forgetting to take care of one or
two essential tasks. For situations like the above, the
public policy behind SB 1082 finds its greatest support.
However, there may be other cases that occur where a
support obligor is given ample notice of activation, or
where the obligor is deployed in the United States, has
ready access to the form petition and a fax machine, and
appointed counsel can handle the matter if the soldier
cannot return to California on holiday or other leave.
If for whatever reason that person fails to pursue a
modification order in a reasonable manner, that service
member would still be entitled under SB 1082 to
retroactive application of any later obtained
modification order (which could be months or years later,
but which would relate back to the original filing date
or service of the modification petition), as well as to
the waiver of penalties and non-accrual of interest for
the non-payment of that part of the support obligation
which could have been modified but was not.
Additionally, the potential hardship of a delayed,
retroactive modification of support on the support
obligee cannot be overlooked. Although the obligee must
be served a copy of the notice of activation in order for
the modification to be made retroactive, that notice
alone will likely not inform the obligee of the amount
the order could be reduced. The child support guideline
is not a simple formula that allows the obligee to simply
look at the obligor's income and know how much support
will be provided. The obligee, who is relying on the
support to feed, clothe and shelter the family, has
little opportunity to determine the means they will be
expected to live within just by receiving this piece of
paper and a retroactive modification could in turn cause
severe hardship to the support obligee. When the obligor
in fact had reasonable time and opportunity to get to
court before deployment elsewhere in the United States
but failed to take timely advantage, it might be argued
that this burden falls too heavily on the obligee. In
likely recognition of this potential unfairness, the bill
would provide that the court, upon a showing of good
cause and for reasons stated, may decline to make a
modification retroactive. The bill has been amended to
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further clarify that good cause shall include, but not be
limited to, a finding that the delay in seeking the
modification was not reasonable under the circumstances.
The bill does not differentiate between the diverse
situations of the short notice activation and deployment
to Iraq, and the lengthy notice of activation and
deployment to Washington State. This issue may be
especially relevant for obligors with IV-D cases, where
they are simply required to complete a form and submit it
to the local child support agency. The local agency then
pursues the modification. Service members who failed to
file the necessary forms prior to deployment, but who now
are not on the front lines, still have an arguably easy
opportunity to complete the required form and fax it to
the local agency.
While consideration might be given to further narrowing
the bill by distinguishing between those soldiers
deployed overseas and those deployed within the United
States, some of the potential fairness issues may be
addressed by the recent amendments adding a good cause
exception to automatic application of the bill's
retroactivity, non-accrual of interest and waiver of
penalties provisions.
4.SB 1082's approach to interest on arrears and penalties
Interest on child support obligations has been the
subject of some legislative debate in the past several
years. Efforts were made to, among other things, reduce
the interest rate, not assess interest on support
obligations owed by incarcerated individuals, and change
the way child support payments are credited so that
payments are credited first to the principal balance and
only after that to interest. Generally, the Legislature
has not favored the forgiveness or waiver of interest on
unpaid child support.
This bill would provide that, if a service member fails
to take advantage of the proffered opportunity to file a
form notice of activation to military service, thereby
fixing the date for modification, the child support order
nevertheless does not accrue interest, and penalties
would not attach, on that amount owed and unpaid which
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would not have accrued if the support order were properly
modified. The authors believe that, no matter how
streamlined and simplified the modification process is
made, service members still often have only a handful of
days to address a huge variety of critically important
issues affecting their lives and the lives of their loved
ones prior to activation and deployment. Although a
service member who fails to file the appropriate
modification request will not get the benefit of the
reduced amount of support, the bill would prohibit
interest from being assessed on the amount of support
that would not have been owed if the modification
occurred. While this provision would provide special
treatment for service members who fail to obtain
modification orders as compared to other non-military
obligors who fail to modify their orders, the authors
assert that the fact these individuals are putting their
lives on the line to protect the nation, justifies this
special treatment.
Although federal law prohibits the retroactive
modification of support obligations, by providing that
the interest does not ever accrue (as opposed to waiving
it after accrual), this bill does not appear to conflict
with federal law. The State Bar Family Law Section
disagrees, believing that this provision is an
impermissible retroactive modification under federal law.
As noted in Comment 3 above, the bill does not
differentiate between the diverse situations of the short
notice activation and deployment to Iraq, and the lengthy
notice of activation and deployment to Washington State.
5. Compromise provisions intended to aid returning
soldiers from Iraq
At page 8, line 39, this bill would amend the existing
compromise of state-owed arrears program (operated by the
Department of Child Support Services) to add a special
compromise provision to benefit support obligors who owe
money to the state because of the state's provision of
child support payments to the soldier's child. Where the
reservist or National Guard member was activated and
deployed out-of-state, and where he or she failed to
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modify the support order to reflect his or her reduced
military income, and where arrears accumulated during the
period of deployment, this bill would declare as a matter
of law that a compromise (of the obligor's debt to the
state) is in the best interest of the state when the
compromise is to forgive the amount of support that would
not have accrued if the modification order had been
timely obtained. This determination that it is in the
best interests of the state could be overridden with good
cause, including a finding the delay in seeking the
modification, or failure to seek the modification at all,
was not reasonable under the circumstances.
This provision is intended in large part to benefit the
returning reservist or National Guard member who was
deployed for some months or years ago, and is thus not in
a position to take advantage of SB 1082's special
modification procedures. However, this compromise
provision would also apply to those soldiers who were
activated and deployed after the effective date of the
bill, but who failed to use the special procedures.
Considerations about the hardship to the support obligee
don't apply because the debt is to the state. Instead,
the burden of any shortfall of revenue resulting from the
compromises would fall on the California taxpayer. The
recently added good cause exception that would allow DCSS
to not issue the compromise is intended to allow DCSS to
better balance those interests where the service member's
actions - or inaction - were more egregious.
6. April 25 amendments taken to address the balance of
hardships
As noted above, this Committee heard SB 1082 on April 19.
In response to questions raised in the analysis and by
committee members, the author amended the bill to provide
greater clarity and expressly permit the court to weigh
the competing interests. The author amended the bill in
the following ways:
a. To clarify that good cause to not make the
modification retroactive would include a finding that
the delay in bringing the modification action was not
reasonable under the circumstances. This could
include scenarios where, for example, the
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servicemember was given significant notice of the
deployment, and failed to take steps to modify the
order despite having a reasonable opportunity to do
so.
b. To clarify that in order to qualify for a stay of
proceedings, the servicemember must comply with the
federal requirements to submit, as part of the request
for the stay, a letter setting forth how the current
military duty requirements materially affect the
service member's ability to appear, or a letter from
the commanding officer indicating that the service
member's military duty prevents appearance and that
the military leave is not authorized at that time.
c. To clarify that upon a finding of good cause, the
court may order that interest does accrue as
authorized by law, and that penalties may be assessed.
d. To clarify that DCSS may find good cause that a
compromise is not in the best interest of the state,
including where the service member's failure to seek,
or delay in seeking the modification was not
reasonable under the circumstances.
e. To provide that, if the modification was stayed
until the service member returned to California duty
from his or her active duty deployment, then the
servicemember must within 60 days of his or her
return, request the court to set the matter for
hearing. Failure to request a court date within this
time frame will result in the service member losing
the benefits of the modification provisions of the
bill.
f. To require the Judicial Council, on the notice of
activation form, to include a warning to the opposing
party informing him or her that, absent a finding of
good cause, the order will be made retroactive. This
will ensure that the opposing party has some real
notice of the effect the service member's reduction in
income may have on the child support obligation.
7. Sidenote: Compromise provisions will sunset on
January 1, 2007
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Existing Family Code Section 17560, which sets forth the
current compromise program, is scheduled for sunset on
January 1, 2007. This program was enacted as part of a
budget deal to generate additional revenue for the state.
The Department of Child Support Services is directed to
make a mid-2006 report to the Legislature regarding the
program's success or failure.
SB 1082's compromise provisions are amended into that
section. Thus, the new compromise will also sunset on
January 1, 2007. Hopefully, our reservists and National
Guard troops will be home before then.
8. Development of the court forms
Typically, the Judicial Council produces new or revised
forms in one of two cycles, either January or July. The
forms the Judicial Council develops are reviewed
internally at the Council by forms committees and others,
and also go out for public comment. This bill would
require the Judicial Council to develop the forms created
by the bill within 90 days of the effective date of the
measure. This would likely be outside of the traditional
cycle. The authors note however, that they received
assurances from a high-level official at the
Administrative Office of the Courts that forms
necessitated by this bill could be produced outside the
normal cycle.
9.Continuing issues of the State Bar's Family Law Section
The amendments taken by the author address many of the
issues raised by the Family Law Section of the State Bar.
For example:
a. The amendments clarify that the notice of
activation and request for modification is not
intended to supplant the existing order to show cause
or notice of motion. Rather, this new form is an
alternative that may be used by the service member.
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b. The amendments clarify that the term "penalties"
refers to monetary penalties expressly authorized by
the Family Code, and not, as the Family Section
queried, interest or enforcement mechanisms such as
tax intercepts.
c. The amendments remove any lingering doubt that the
notice of activation and request for modification must
be served on the opposing party, and not just filed
with the court.
d. The amendments clarify that the notice of
activation form to be developed by the Judicial
Council must contain the date of deployment and all
information necessary for the court to determine the
appropriate amount of child support to order. The form
will also notify the requesting party of the
obligation to bring the matter to court for final
resolution within 60 days of returning to California,
or otherwise lose the benefits afforded by this bill.
The Family Law Section believes a few additional
amendments are still necessary:
a. Requiring the Judicial Council to create, and the
service member to file, a notice of deactivation of
military service upon return from active duty
deployment. Although the bill now requires the matter
to be brought to court within 60 days of return if the
service member wants the order to be made retroactive,
the Family Law Section believes this additional form
is necessary to remind the service member of his or
her obligation to act upon return.
b. Expressly stating that the party may request, and
the court may grant, an order shortening time for
service and hearing to clarify the procedure for
getting in to court in advance of the servicemember's
deployment. However, upon a search of the Family
Code, Committee counsel found no other sections where
this process is laid out in statute. It is unclear why
this bill would need to expressly provide for this
otherwise understood possible procedure.
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The Family Law Section also suggested some
amendments regarding notice to local child support
agencies and lengthening the time allotted for local
child support agencies to bring a motion for
modification. However, neither DCSS nor the local
child support agencies have raised these concerns.
Additionally, DCSS has already directed local child
support agencies to "give request for review and
adjustment [i.e. modification] from servicemembers
the highest priority and flexibility allowed under
State law." (CSS Letter 04-24, dated November 2,
2004.)
Support: Military Parents Alliance; State Bar Family Law
Section (if amended);
265 individuals
Opposition: None Known
HISTORY
Source: Armed Forces Retirees Association of California
Related Pending Legislation: AB 265 (Haynes), pending in
the Assembly
Judiciary Committee; no hearing
date set
Prior Legislation: None Known
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