BILL ANALYSIS
AB 380
Page 1
Date of Hearing: April 20, 1999
ASSEMBLY COMMITTEE ON JUDICIARY
Sheila James Kuehl, Chair
AB 380 (Wright) - As Amended: April 5, 1999
SUBJECT : CHILD SUPPORT
KEY ISSUES :
1)SHOULD PARTIES BE PROVIDED THE OPPORTUNITY TO UPSET
CALIFORNIA'S LONG-STANDING CONCLUSIVE PRESUMPTION THAT A CHILD
OF A WOMAN COHABITING WITH HER HUSBAND IS A CHILD OF THE
MARRIAGE?
2)SHOULD AN INDIVIDUAL BE PERMITTED, AT ANY TIME, TO SEEK AN
ORDER SETTING ASIDE A JUDGMENT OR ORDER OF PATERNITY BASED
UPON GENETIC TESTS WHICH DEMONSTRATE THAT HE IS NOT THE
BIOLOGICAL FATHER OF THE CHILD?
3)SHOULD A PARTY WHO HAS BEEN GRANTED AN ORDER SETTING ASIDE THE
ENTRY OF DEFAULT OR A DEFAULT JUDGMENT BASED ON THE LACK OF
ACTUAL NOTICE BE AWARDED COMPENSATORY DAMAGES, PUNITIVE
DAMAGES, AND ATTORNEY'S FEES AND COSTS UPON A FINDING THAT THE
LACK OF ACTUAL NOTICE WAS DUE TO THE PLAINTIFF'S INTENTIONAL
OR GROSSLY NEGLIGENT FAILURE TO COMPLY WITH SERVICE
REQUIREMENTS?
4)SHOULD CHILD SUPPORT ORDERS ESTABLISHED BY THE DISTRICT
ATTORNEY BE RETROACTIVE ONLY TO THE DATE OF SERVICE OF THE
COMPLAINT, RATHER THAN THE CURRENT ALLOWANCE FOR RETROACTIVITY
FOR UP TO THREE YEARS IF THE OBLIGEE RECEIVES PUBLIC
ASSISTANCE?
5)SHOULD A PARTY WHO HAS ALLEGEDLY BEEN SERVED BY THE DISTRICT
ATTORNEY IN AN ACTION FOR SUPPORT BE ENTITLED TO HAVE THE
DISTRICT ATTORNEY RELEASE TO HIM OR HER THE ADDRESS WHERE
SERVICE WAS ALLEGEDLY EFFECTED?
SUMMARY : Seeks to make numerous substantive and procedural
changes to child support enforcement and other statutes to
address concerns expressed by support obligors. Specifically,
this bill :
1)Sets forth legislative findings and declarations providing,
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among other things, that: a) a large number of child support
orders are obtained by default judgment; b) very often, by the
time a support obligor receives actual notice of the support
order, the arrearages total tens of thousands of dollars; and
c) each year, thousands of individuals are mistakenly
identified as being liable for child support obligations.
2)Provides that all current child support obligations shall
temporarily cease, and no interest on any pre-existing child
support arrearages shall accrue, if the support obligor is in
jail or prison for more than 90 days. If the obligor,
notwithstanding his or her incarceration, has continuing
income or assets that may be attached to satisfy the child
support obligation, this section shall not apply.
3)Requires notice to be provided to an individual upon entry
into any jail or correctional facility, advising the prisoner
of the provisions of (2), above, and the right to have any
child support obligation recalculated. The bill is silent on
the issue of who is to be responsible for creating or
providing this notice.
4)Requires the district attorney (DA), notwithstanding (3),
above, to provide a simplified form to enable an incarcerated
obligor to request a recalculation of arrearages, and if the
DA determines that the obligor is entitled to a reduction in
arrearages, requires the DA, on its own motion, to obtain a
court order making the adjustment. No similar provision is
made for a reduction of the support amount owed while the
obligor is incarcerated. This provision is limited to cases
in which the DA is providing support enforcement services.
5)Changes the statute of limitations for the setting aside of a
support order entered after the default of the obligor if the
court finds the facts alleged as the grounds for relief
materially affected the original order and that the moving
party would materially benefit from the granting of relief.
The possible grounds for setting aside the support order, and
the time for filing such an action, are as follows:
a) Actual fraud which kept the obligor in ignorance or in
some other manner fraudulently prevented the obligor from
fully participating in the proceeding. An action to set
aside based on actual fraud shall be commenced within six
months from the date on which the complaining party
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discovered the fraud. The time period may be extended if
the court finds that the interests of justice compel the
granting of relief.
b) Perjury. An action to set aside based on perjury shall
be commenced within six months from the date on which the
complaining party discovered the perjury. The time period
may be extended if the court finds that the interests of
justice compel the granting of relief.
c) Lack of actual notice which does not allow a party time
to defend an action for support. An action to set aside
based on lack of actual notice shall be commenced within
six months from the date the party obtains actual notice of
the support order or actual notice that the party's income
and assets are subject to attachment. The time period may
be extended if the court finds that the interests of
justice compel the granting of relief.
6)Provides that if an order is set aside based on lack of actual
notice, and the lack of actual notice was the result of an
intentional or grossly negligent failure of the plaintiff to
comply with service requirements, the moving party shall be
entitled to recover actual damages, punitive damages in amount
not to exceed $5,000, and attorney's fees and costs. This
provision would apply in cases initiated either by the DA or
private parties.
7)Authorizes parents of children who receive public assistance
to claim a hardship deduction in the calculation of child
support for the basic living expenses of children of another
relationship living with the parent and for whom the parent
has a legal obligation to support. Parents of children not
receiving public assistance are currently permitted to seek
such a deduction.
8)Requires the Department of Health Services to provide to a
court or commissioner, upon request, a notice of recission of
a voluntary declaration of paternity filed with the
Department.
9)Authorizes a person identified as the father of a child in a
judgment or order in which paternity was at issue to set aside
that judgment or order at any time based upon the results of
genetic tests showing that he is not the father of the child.
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A judgment or order may only be set aside upon the filing of a
motion by the child, the child's mother, or the previously
established father.
10)Prohibits the court from setting aside a judgment or order
based on (9) above if the father was present at the hearing
which established paternity, knew that his paternity was or
could be at issue, and failed to dispute paternity. The
judgment or order may also not be set aside if the judgment
was the result of a stipulation in open court of parties'
rights to a trial on the issue of paternity and to have
genetic testing performed.
11)Permits the court to deny a motion to set aside based on (9)
above if the court finds that disestablishment of paternity is
not in the best interests of child, even though genetic tests
prove that the previously established father is not the
biological father.
12)Prohibits the DA from participating in a motion to set aside
based on (9) above unless the DA is providing support
enforcement services at the time the motion to set aside is
heard or filed.
13)Provides that, if a court finds a defendant guilty of willful
disobedience of a court-ordered child or spousal support
obligation, the court may, in lieu of ordering incarceration,
require the defendant to provide a bond or other undertaking
of a sufficient amount to secure the defendant's compliance
with his or her support obligations.
14)Provides that, notwithstanding the above, the court may waive
the requirement of posting a bond as a precondition for a
suspended sentence.
15)Limits the retroactivity of support orders to the date of
service of the complaint for child support. This eliminates
the authority of the DA, in cases in which children receive
public assistance, to seek orders retroactive to the date on
which assistance was first received, up to a maximum of three
years prior to the date of the order.
16)Requires the county welfare department, upon granting an
application for public assistance, to notify the noncustodial
parent named in the application that aid has been granted and
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that he or she shall be obligated to the county for the
payment of support. No notification is required if the
applicant has been granted a good cause exception to the
requirement to cooperate with the welfare department and the
DA in establishing paternity and establishing and enforcing
support.
17)Requires that, if criminal proceedings are pending for
willful disobedience of a court-ordered support order, or
willful failure to provide, any hearing to challenge the DA's
release of a license, for determination of compliance with a
support order, or for modification of a support order, be held
in the criminal court, not the civil court having jurisdiction
over the support order.
18)Allows a defendant who was mistakenly identified as the
person named in a support action, to set aside any judgment or
order issued against him or her based on the mistaken
identification. Any person so identified is required to file
a claim of mistaken identity with the DA, who shall
immediately investigate the claim. The DA is required to
resolve the claim in 30 days, absent exceptional
circumstances. If the claim is found to be meritorious, the
DA shall take all steps necessary to terminate all enforcement
activities, return any assets seized, terminate any levying
activities or assignment orders, release any licenses being
held, and return any sums paid, excluding those paid to the
support obligee.
19)Provides that, if the DA rejects a claim made pursuant to
(18) above or fails to take necessary actions after finding a
claim to be meritorious, the claimant may file an action in
court. A prevailing plaintiff shall be entitled,
notwithstanding the Government Tort Claims Act, to recover
actual damages, attorney's fees and costs, and any other
relief the court deems just.
20)Requires the DA to act on credible information provided by
the support obligee concerning the residence or work address
of the support obligor and within 60 days of receiving the
information, initiate an enforcement action and serve the
defendant, or notify the support obligee that the information
was determined to be inaccurate or that the DA otherwise could
not locate and serve the obligor within the requisite time
period.
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21)Entitles a party who has allegedly been served by the DA in
an action for support be to have the DA release to him or her
the address where service was allegedly effected.
EXISTING LAW :
1)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.)
2)Authorizes a court order to be modified or terminated at any
time the court determines to be necessary. However, no
support order may be modified or terminated as to an amount
that accrued before the date of the filing of the notice of
motion or order to show cause to modify or terminate. (Family
Code section 3651. All further statutory references are to
this code unless otherwise noted.)
3)Provides that a judgment, or part thereof adjudicating support
or division of property, in a proceeding for dissolution,
nullity, or legal separation, may not be set aside simply
because the court finds that the order was inequitable when
made or because subsequent circumstances caused the division
of assets or liabilities to become inequitable, or caused the
support order to become inadequate. (Section 2123.)
4)Authorizes the court to set aside the entry of default or a
default judgment based upon a party's "mistake, inadvertence,
surprise, or excusable neglect." Application for set aside
based on these grounds shall be within a reasonable time, not
to exceed six months after the entry of default or the default
judgment. (Code of Civil Procedure section 473.)
5)Authorizes the court to set aside entry of default or a
default judgment as much as two years after the entry of the
order when service of the summons did not result in actual
notice to a party in time to defend the action. (Code of
Civil Procedure section 473.5.)
6)Provides that, in addition to the statute of limitations for
setting aside a judgment that is otherwise provided by law, a
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judgment, or part thereof adjudicating support or division of
property, in a proceeding for dissolution, nullity, or legal
separation may be set aside based upon the following grounds
and within the following time frames:
a) Actual fraud which kept the obligor in ignorance or in
some other manner fraudulently prevented the obligor from
fully participating in the proceeding. An action to set
aside based on actual fraud shall be commenced within one
year from the date on which the complaining party
discovered or should have discovered the fraud.
b) Perjury in the declaration of assets or liabilities or
the declaration attesting to the income and expenses of the
party. An action to set aside based on perjury shall be
commenced within one year from the date on which the
complaining party discovered or should have discovered the
perjury.
c) Duress. An action to set aside based on duress shall be
brought within two years after the date of entry of
judgment.
d) Mental Incapacity. An action to set aside based on
mental incapacity shall be brought within two years after
the date of entry of judgment.
(Section 2122.)
7)Authorizes the court, in a case in which the DA is providing
support enforcement services, to set aside a child support
order contained in a judgment if that order was based on
"presumed income" and the obligor's income was substantially
different for the period of time the order was effective. A
motion to set aside the order may be filed after the six-month
statute of limitations allowed under the Code of Civil
Procedure, if it is filed within 90 days of the first
collection of money by the DA or the support obligee.
(Welfare and Institutions Code section 11356.)
8)Provides that, except as otherwise provided by statute, a
public entity shall not be liable for an injury arising out of
an act or omission of the public entity or an employee
thereof. However, where a public entity is under a mandatory
duty imposed by statute to protect against the risk of a
particular kind of injury, the public entity is liable for an
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injury of that type proximately caused by its failure to
discharge the duty, unless the entity demonstrates that it
exercised reasonable diligence in the exercise of that act.
(Tort Claims Act, Government Code sections 815 and 815.6.)
9)Authorizes a party to claim a "hardship deduction" in
calculating the party's income for purposes of the child
support guideline for the minimum basic living expenses of
children from another relationship living with the party and
for whom the party has a legal obligation to provide support.
No deduction shall be allowed if public assistance is being
received for any children of the party requesting the
deduction. (Sections 4071 and 4071.5.)
10)Provides that in cases of separation or desertion of a parent
from a child which results in public assistance being granted
to the family, a child support order may be made retroactive
to the date public assistance was first granted, up to a
maximum of three years from the date the order is issued.
(Welfare and Institutions Code section 11350; Code of Civil
Procedure section 338(a), State of Ohio v. Barron (1997) 52
Cal.App.4th 62.)
11)Requires every unmarried mother, prior to leaving a hospital
after giving birth, to be given a voluntary declaration of
paternity to be completed by the mother and father. A
completed voluntary declaration of paternity filed with the
Department of Social Services shall establish the paternity of
a child and shall have the same force and effect as a judgment
for paternity issued by a court. Either party may rescind the
declaration by filing a specific recission form with the
Department of Social Services within 60 days of executing the
declaration. (Sections 7571, 7573 and 7575.)
12)Either the mother of a child, or the man who signed a
voluntary declaration as the child's father may, within two
years from the date of the child's birth, make a motion for
genetic tests in an action to determine the existence or
nonexistence of a parent-child relationship, or in any action
to establish an order for custody, visitation, or support
based on the voluntary declaration. If the tests prove that
the man who signed the declaration is not the father of the
child, the court may set aside the declaration. (Section
7575.)
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13)Notwithstanding the conclusive presumption that the child of
a wife cohabiting with her husband is a child of the marriage,
the husband, the wife (in certain circumstances), the presumed
father, or the child may file a motion for blood tests to
prove the existence of a parent-child relationship. If the
test establishes that the husband is not the father, the
question of paternity as to the husband shall be resolved
accordingly. (Sections 7540 and 7541.)
14)Makes it a misdemeanor to willfully disobey a court-ordered
child or spousal support obligation. (Penal Code section
166.)
15)Makes it a misdemeanor to willfully fail to provide necessary
clothing, food, shelter, medical attention or other remedial
care for a child, whether or not an order for support has been
issued. (Penal Code section 270.)
16)Authorizes the court, in lieu of ordering incarceration for a
defendant found guilty of willful failure to provide under
Penal Code section 270, to require the defendant to post a
bond or other undertaking of an amount fixed by the court to
ensure the defendant's performance of his or her support
obligations. The court is not permitted to waive provision of
the undertaking. (Penal Code section 270b.)
17)Sets forth the intent of the Legislature to protect
individual rights of privacy and to facilitate and enhance the
effectiveness of the child support program by ensuring the
confidentiality of support enforcement records. In order to
effectuate this intent, a proof of service filed by the DA
shall not disclose the address where service of process was
accomplished. This address shall remain on file with the DA's
office. (Welfare and Institutions Code section 11478.1.)
FISCAL EFFECT : Unknown
COMMENTS : This broad bill addresses many facets of child
support laws and procedures in order to address various
inequities that the author believes exist in the current law.
The concerns which inspired the author to carry this measure are
as follows:
1) Service of process in some cases being enforced by the DA's
office, at least according to anecdotal evidence, may not result
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in actual notice to the alleged obligor. Without notice, the
alleged obligor does not have an opportunity to present evidence
to the court or the DA that he is not father or unable to
currently pay the amount of support proposed by the DA.
2) The DA may, for one reason or another, not take any actions
to enforce a support order for some time after it is
established. Depending on how long it is before any actions are
taken which inform the obligor of the court-ordered obligation,
some existing statutory time frames to set aside or otherwise
question the court order may have passed.
The bill, however, addresses issues which are much broader than
these concerns, some of which may prove problematic or
inconsistent with existing laws and policies promulgated by the
Legislature.
Following are three major provisions of the bill which appear to
appropriately address the stated issues of fairness and equity.
1) ELIMINATING THE "THREE-YEAR REACH BACK" IN PUBLIC ASSISTANCE
CASES . This bill eliminates the authority of the DA, in cases
in which children receive public assistance, to obtain a support
order that is retroactive by as much as three (3) years prior to
the date of the support order. In cases in which the child does
not receive public assistance, no such authority exists. In
fact, an order may only be made retroactive only to the date of
filing a motion or order to show cause. (Family Code section
4009; Santa Clara v. Perry (1998) 18 Cal.4th 435.) SB 588
(Rainey), similarly eliminates this three-year reach back and
attempts to clarify that in all cases the support order may be
made retroactive to the date of service of the complaint.
Although the California Supreme Court has held that the
three-year reach back in cases where the children receive public
assistance is not a violation of the Equal Protection clause of
the Constitution, the author notes that it nonetheless treats an
entire class of litigants unfairly.
When the Legislature adopted the provision for retroactive child
support in cases of public assistance, it "intended recoupment
of benefit payments to alleviate the burden on taxpayers and to
ensure that as the number of needy children rose benefits to
each child would not be reduced." ( City and County of San
Francisco v. Thompson (1985) 172 Cal.App.3d 652, 658.) However,
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welfare reform has made recovering public assistance monies a
secondary goal of the child support program. Currently, the
highest priority appears to be to make certain that families
receive their child support in order for them to obtain
self-sufficiency. To the extent that the elimination of an
immediate, and often cumbersome, child support arrearage
increases the likelihood that parents will meet their current
support obligations, this provision of the bill would seem to be
consistent with the goals of welfare reform.
2) AUTHORIZING THE USE OF A "HARDSHIP DEDUCTION" IN CASES WHERE
THE CHILDREN RECEIVE PUBLIC ASSISTANCE . Under current law,
either party in a support action may request a deduction for the
minimum basic living expenses of a child from another
relationship living with the party, and for whom the party has a
legal obligation of support. This deduction, which reduces the
net income of a party for purposes of calculating child support,
is known as a hardship deduction. The law also provides,
however, that no party whose children receive public assistance
is entitled to claim a hardship deduction.
Several courts have recently examined the constitutionality and
equity of this provision. In County of Orange v. Ivansco (1998)
67 Cal.App.4th 328, the court found this provision to be a
violation of the right to equal protection and unconstitutional
whether or not the classification involves a fundamental right
(and thus whether the statute must satisfy the tough "strict
scrutiny" test or the less difficult "rational basis" test). In
Moreno v. Draper , (1999) 70 Cal.App.4th 886, the court just last
month disagreed with Ivansco , holding that there need only be a
rational basis for the classifications created by this section,
and that such a rational basis has been established. The court
notes that "requiring a noncustodial parent to take full
responsibility for their calculated guideline share of support
in raising a noncustodial child is rationally related to the
allocation of limited public funds." In City and County of San
Francisco v. Garnett, (1999) 70 Cal.App.4th 845, the court
agreed that prohibiting hardship deductions in cases where
children of the person seeking the deduction are receiving
public assistance is rationally related to a legitimate state
purpose and does not violate equal protection. However, the
court did note that "[t]he wisdom and fairness of the statute
are debatable, but that debate belongs in the Legislature."
3) RELIEF FROM JUDGMENT BASED UPON A SHOWING OF
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MISIDENTIFICATION . The bill allows an individual who is not the
person named in a support order, to set aside any judgment or
order issued based on this misidentification. This provision,
which is limited to cases in which the support order is being
enforced by the DA, requires the individual to file a claim of
misidentification with the DA, and requires the DA to take
action to verify the claim within 30 days. If the claim is
found to have merit, the DA is required to take all steps
necessary to terminate all enforcement activities, return any
assets seized, terminate any levying activities or assignment
orders, release any licenses being held, and return any support
paid to the county. This provision is to be distinguished from
another provision of the bill allowing an individual to set
aside a paternity and support order based on genetic tests
showing that he is not the father. Rather, this provision would
allow, "John Smith," whose wages are being attached pursuant to
a support order, to demonstrate that he is not the John Smith
who is the true defendant in the action and is responsible for
the support.
According to author, examples of mistaken identification are far
too common in cases being enforced by the DA, and there is no
simple procedure to require the DA to correct any such mistake.
This bill would provide a simple, expedited procedure to stop
the collection of support and ensure that all assets erroneously
seized are quickly returned to the misidentified party.
In addition to the issues addressed above , the author seeks to
address many other areas of child support law. Following are
the provisions in the bill which the Committee may feel
compelled to substantially amend or eliminate completely.
4) MODIFICATION OF SUPPORT ORDERS AND INTEREST DUE IN THE
ABSENCE OF A MOTION OR ORDER TO SHOW CAUSE . This bill provides
for a temporary modification of a support order down to zero, by
operation of law, without the need to file a notice of motion or
order to show cause, if the support obligor is incarcerated for
more than 90 days. The bill similarly modifies the amount of
interest due and payable by operation of law, without the need
to file a notice of motion or order to show cause, by providing
that interest on unpaid support shall not accrue for the period
in which the obligor is incarcerated in excess of 90 days.
California law prohibits a court from modifying the amount of a
support order or terminating the order before the date on which
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the order to show cause to modify or terminate is filed.
(Family Code section 3651.) Federal law prohibits modification
or termination of a support order before the date on which the
motion or show cause order was served on the other party. (42
U.S.C. 666(a)(9).) By providing that "no installments of child
support shall become due, and no interest on any arrearages
shall accrue, for any period of time in excess of 90 days during
which the support obligor is incarcerated," this bill appears to
be in direct conflict with existing law. A modification or
termination that occurs without the filing of a motion or show
cause order would effectively be an impermissible modification
or termination that is retroactive beyond the date of filing,
since no motion or show cause order would have been filed.
Additionally, incarceration may not be the only obstacle that
prevents a support obligor from fulfilling an obligation or
obtaining a modification from the court. The onset of a mental
or physical disability, hospitalization or other conditions may
make it difficult for an obligor from to remain current on a
support obligation or seek a modification in court. The
Committee may decide that selectively providing the benefits of
this section to individuals who have voluntarily broken the law
and are, therefore, incarcerated is contrary to public policy.
The Committee may therefore wish to amend the bill to delete
Sections 7 (page 7, line 36 through page 8, line 19) and 20
(page 23, line 13 through page 24, line 2) of the bill providing
for this modification by operation of law.
5) AUTHORITY TO SET ASIDE ORDERS SUBSEQUENTLY FOUND BY THE COURT
TO BE EXCESSIVE OR INADEQUATE . The introduced version of the
bill specifically provided that: "Notwithstanding any other
provision of this article [relating to set aside of support
orders], or any other law, a support order may not be set aside
simply because the court finds that it was inequitable when
made, nor simply because subsequent circumstances caused the
support ordered to become excessive or inadequate." The
California Judges Association argued that this section "is
undesirable because it would limit a judicial officer's
discretion by prohibiting subsequent modification of a support
order later found to be inequitable when made, or subsequently
excessive or inadequate," and this section was deleted in the
current version of the bill The section, however, does not
prohibit modification of support orders, but simply set asides.
The court can always modify a support order based upon a showing
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of changed circumstances, including a change in income that
makes the support order excessive or inadequate. Additionally,
this provision parallels an existing Family Code provision
regarding set aside of support property division orders in
dissolution or legal separation cases.
The Committee may wish to amend the bill to reinsert this
provision, clarifying the appropriate and inappropriate
circumstances for setting aside a support order.
6) STATUTE OF LIMITATIONS FOR FILING A MOTION TO SET ASIDE BASED
ON FRAUD, PERJURY, AND LACK OF ACTUAL NOTICE . The bill
currently allows an individual to set aside a support order
entered after the default of the obligor if there was actual
fraud, perjury, or if the obligor failed to have actual notice
of the claim. Actions to set aside a judgment or order on any
of these grounds shall be commenced within six months from the
date the obligor discovers the facts giving rise to the motion.
The trend in California law appears, however, to require actions
be filed within a specified time period after the moving party
discovers, or reasonably should have discovered, the facts
giving rise to the motion. For example, 1) an action for mesne
profits of real property shall be commenced within five years
from the time the person seeking to enforce the restriction
discovered, or through reasonable diligence should have
discovered the violation (Code of Civil Procedure section 336);
2) an action for the recovery of damages suffered as a result of
childhood sexual abuse shall be commenced . . . within three
years after the plaintiff discovers or reasonably should have
discovered the psychological injury or illness (Code of Civil
Procedure section 340.1); 3) a civil action for damages suffered
as a result of domestic violence shall be commenced . . . within
three years from the date the plaintiff discovers or reasonably
should have discovered that an injury or illness resulted from
an act of domestic violence by the defendant (Code of Civil
Procedure section 340.15); 4) an action against an attorney for
a wrongful act or omission shall be commenced within one year
after the plaintiff discovers, or through the use of reasonable
diligence should have discovered the facts constituting the
wrongful act or omission; and 5) a motion to set aside a
judgment or part thereof adjudicating support or division of
property in a proceeding for dissolution, nullity, or legal
separation based on actual fraud or perjury shall be commenced
within one year from the date on which the complaining party
discovered or should have discovered the fraud or perjury
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(Family Code section 2122).
The Committee may therefore wish to amend the bill , consistent
with these provisions, to base the statute of limitations for
setting aside a support order on the time in which the obligor
discovered, or should have discovered, the facts giving rise to
the motion.
Additionally, it is important to note that this section, as
drafted, may allow an individual to set aside an order due to
lack of actual notice, beyond existing authority to do so, when
all service of process requirements were followed to the letter
and the spirit of the law. The Committee may therefore wish to
amend the bill to provide, on page 11, between lines 20 and 21,
"(3) The court may not set aside an order or otherwise relieve a
party from a support order pursuant to this subdivision if
service of the summons was accomplished in accordance with
existing requirements of law regarding service of process."
7) SETTING ASIDE SUPPORT ORDERS "IN THE INTERESTS OF JUSTICE."
On page 11, lines 21 - 30, the bill authorizes the court to set
aside a support order based on actual fraud, perjury, or lack of
actual notice, after the expiration of the time otherwise
provided for filing a set aside on those grounds, if the
interests of justice require. The section goes on to provide,
however, at lines 27 - 30, that an action to set aside based on
the interests of justice "must be brought within six months
following the occurrence of the events or the discovery of the
facts that are alleged to compel the granting of relief."
Actions to set aside based on fraud, perjury, or lack of actual
notice must themselves, pursuant to this bill, be brought within
six months after the date the party discovered the facts of the
fraud, perjury, or lack of actual notice. The interests of
justice provision, therefore, appears to add no additional
protections and may inadvertently confuse parties and the court
on the grounds and appropriate time frames for filing motions to
set aside.
Neither Welfare and Institutions Code section 11356 nor Family
Code section 2122 (described above), extending the time for
filing a motion to set aside based on fraud, perjury, duress,
mental incapacity, or income substantially different from the
presumed amount used to calculate a support obligation, allow
further extension of the statute of limitations based on the
"interests of justice."
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In order to clarify the time periods set forth for set aside
based on fraud, perjury, and lack of actual notice, and to make
this provision more consistent with Welfare and Institutions
Code section11356 and Family Code section 2122, the Committee
may wish to amend the bill to delete lines 21 - 30 on page 11
relating to set asides based on the interests of justice.
8) AWARDS OF DAMAGES FOR INTENTIONAL OR GROSSLY NEGLIGENT
FAILURE TO COMPLY WITH SERVICE REQUIREMENTS . The bill provides
that if the court grants a motion to set aside a support order
based on the lack of actual notice, the plaintiff, whether DA or
low-income parent representing him or herself, shall be liable
for compensatory and punitive damages, as well as attorney's
fees and costs, if the failure to provide actual notice was the
result of an intentional or grossly negligent failure to comply
with service of process requirements.
Gross negligence is defined in California law as the failure to
exercise slight care or diligence, or as the want of slight
diligence or exercise of so slight a degree of care as to
justify the belief that there was an indifference to the things
and welfare of others. (See, e.g., Civil Code section 987
(defining gross negligence in the physical alteration of fine
art); and Pratt v. Western Pacific Railroad Company (1963) 213
Cal.App.2d 573, 579-580 (noting that all of the definitions of
gross negligence defined in California case law embody the
simple idea of "the want of slight care and diligence."))
It is conceivable that a litigant representing him or herself
due to the inability to afford an attorney, may not understand
the importance of appropriate service and the ramifications of
ineffective service. In such a case, the damages provided in
this section may be inappropriate. And certainly punitive
damages, which are awarded upon a showing of malice, oppression,
or fraud, would seem to be inappropriate for a grossly negligent
failure to follow requirements for service of process.
In light of the above, the Committee may wish to amend the bill
to delete section 3692 (page 11, line 37 through page 12, line
8) allowing for the award of damages.
9) DISESTABLISHMENT OF PATERNITY AT ANY TIME AFTER ADJUDICATION
BASED UPON GENETIC TEST RESULTS . The bill allows a person who
has been adjudicated the father of a child to file a motion to
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set aside the paternity judgment. The motion to set aside the
judgment or order establishing paternity may be made at any
time. No party who was present in court and had the opportunity
to be heard, or stipulated in open court to paternity after
being notified of the right to have genetic testing and the fact
that this testing would be paid for by the DA, shall be entitled
to the benefits of this section. This section applies both
private cases as well as cases being enforced by the DA.
This provision would appear to "reward" individuals who failed
to appear in court after being properly served with all
necessary court documents, and possibly even responding. It is
even possible under the language of the bill for an individual
to have filed an answer to a paternity complaint agreeing to
paternity and still be entitled to the benefits of this section
so long as he does not appear in court. Should lack of
diligence or failure to respond after proper service, for any
reason or no reason at all, be sufficient to allow an individual
to upset the judgment of the court? Even more importantly,
should it be sufficient, years later, to disturb any
understanding a child has about his or her family background and
identity? This would appear to send the wrong message.
The bill does set forth specific criteria pursuant to which the
court may, regardless of the results of any genetic testing,
deny the motion to set aside the order adjudicating paternity if
such an order would be contrary to the best interest of the
child. The factors the court may consider include the age of
the child, the length of time since the adjudication of
paternity, the length of time since the person bringing the
motion knew or should have known the facts that led to the
belief he is not the father, and any additional factors deemed
relevant by the court.
Regardless of the above caveat, however, the bill has the effect
of undoing California's long-standing conclusive presumption
that a child born during the marriage, to a husband and wife who
are cohabiting, is a child of the marriage. The courts have
recently examined and commented on the vital and historic
importance of this conclusive presumption. In Rodney F. v.
Karen M ., the court, in rejecting a due process challenge to the
presumption, held that "the presumption reflects the sanctity
traditionally accorded to the relationships that develop within
the unitary family." (61 Cal.App.4th 233, 239 (1998).) In that
case, the court found that "the child was conceived and born
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during Karen M.'s marriage to her husband. They are the only
parents the child has ever known. It is precisely that type of
relationship that [this presumption] is designed to protect from
interference. The state has a legitimate interest in doing so."
( Id. at 240. See also Michael M. v. Giovanna F. (1992) 5
Cal.App.4th 1272,1282 finding that the "state has a continuing
interest in the welfare of the child, and in 'familial
stability'.")
Other cases have permitted the courts to use a balancing test
and avoid application of the conclusive presumption when its
underlying policies are not furthered in a particular case.
(See e.g. County of Orange v. Leslie B. (1993) 14 Cal.App.4th
976.) This bill, however, appears to go further than such
cases, allowing a judge to consider a set aside of a paternity
order that would upset the traditional underpinnings and
policies behind the conclusive presumption.
In light of the strong public policy interest in maintaining
stability and permanence for children, the limited discretion
already provided courts to set aside a paternity judgment, and
the increased time frames for set aside of support orders and
judgments otherwise provided in this bill, t he Committee may
wish to amend the bill to delete this broad authority to set
aside paternity judgments, by striking Section 13 of the bill in
its entirety.
10) PROHIBITION ON DA PARTICIPATION IN ACTIONS TO SET ASIDE
PATERNITY . Should the Committee choose to approve the set aside
provision discussed immediately above, the Committee may wish to
consider amending the provision relating to the role of the DA.
This bill limits the participation of the DA in proceedings to
set aside a paternity judgment which is filed on the ground that
genetic tests prove that the previously established father is
not in fact the biological father. The bill specifically
provides (on page 19, line 35 - page 20, line 2) that the DA
shall participate in the proceeding only if he or she is
providing child support enforcement services at the time the
motion is filed or heard. This provision would seem to
inadvertently exclude DA participation in cases where the DA,
not the other parent, was in fact the plaintiff in the action to
establish paternity, but is no longer providing support
enforcement services to the custodial parent. A motion to set
aside the paternity judgment in such a case, would have to be
filed against the DA. This bill, however, would prevent the DA
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from responding or otherwise playing any role in the proceeding.
In order to ensure that all the proper parties are given
sufficient notice and opportunity to be heard, if the Committee
elects to approve the set aside provision, the Committee may
wish to amend the bill to delete this restriction on the DA's
participation.
11) REQUIRING THE POSTING OF A BOND IN LIEU OF INCARCERATION FOR
WILLFUL DISOBEDIENCE OF A CHILD SUPPORT ORDER . This bill
authorizes the court, upon finding a defendant guilty of willful
disobedience of a court-ordered child or spousal support
obligation, in lieu of ordering incarceration, to require the
defendant to provide a bond or other undertaking of a sufficient
amount to secure the defendant's compliance with his or her
support obligations. Notwithstanding this, however, the bill
allows the court to waive the requirement of posting a bond as a
precondition for a suspended sentence. The provision allowing
the posting of a bond in lieu of incarceration is similar to
Penal Code section 270b, allowing the court, in lieu of
incarceration, to require a defendant found guilty of willful
failure to provide support to provide a bond or other
undertaking to secure compliance with a support obligation. The
provision, allowing waiver of the bond, however, appears to have
no analog.
In light of the above, the Committee may wish to amend the bill
to delete this discretion to waive the bond set forth on page
20, lines 33 - 35.
12) NOTIFICATION TO A NONCUSTODIAL PARENT THAT PUBLIC ASSISTANCE
HAS BEEN GRANTED AND CHILD SUPPORT IS OWING . The bill (Section
16, page 22, lines 10 - 23) requires the county welfare
department, upon granting an application for public assistance,
to notify the noncustodial parent named in the application that
aid has been granted and that he or she shall be obligated to
the county for the payment of support. The County Welfare
Directors Association (CWDA) raises concerns that this provision
would require county welfare offices to violate CalWORKs
recipients' confidentiality rights by releasing this information
to individuals not within the assistance unit. CWDA therefore
argues that if this information is to be provided, it should be
provided by DAs rather than the county welfare department
because DAs administer the child support program and have a
relationship with the noncustodial parent.
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In order to address serious confidentiality concerns and to
protect applicants for aid who are victims of domestic violence,
the bill provides that this section shall not apply if the
applicant for aid has been granted a good cause exception to the
requirements to cooperate with the welfare department and the DA
in establishing paternity and establishing and enforcing
support. A good cause exception shall be granted by the county
welfare department if efforts to establish and enforce paternity
or support would increase the risk of physical, sexual, or
emotional harm to the child; increase the risk of abuse to the
parent; or would otherwise not be in the best interests of the
child.
However, it is unclear whether this provision of the bill, even
with the exception for aid applicants who have been granted a
good cause exception, would comport with current California
confidentiality provisions. Welfare and Institutions Code
section 11478.1 sets forth the intent of the Legislature to
protect individual rights of privacy, and enhance the
effectiveness of the child and spousal support enforcement
program, by ensuring confidentiality of support enforcement
records, thereby encouraging the full and frank disclosure of
information. That code section therefore provides, with certain
limited exceptions, that all files, applications, papers,
documents, and records established or maintained by any public
entity pursuant to the administration and implementation of the
child and spousal support enforcement program shall be
confidential and shall not be disclosed for any purpose not
directly connected with the administration of the program. It
is certainly arguable that informing a noncustodial parent that
public assistance has been granted, and that he or she shall be
liable for support, may lead to more stipulations to support
obligations, an increased likelihood that support orders will be
established more quickly, or even an increased likelihood that
parents will pay on the order once established. On the other
hand, the Committee may decide that this information is not
directly connected with the administration of the program, or
that the interests of confidentiality outweigh any of these
possibilities.
The Committee may therefore wish to amend the bill to delete
section 16.
13) EXPANDED AUTHORITY OF THE CRIMINAL COURT TO ADDRESS CHILD
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SUPPORT MATTERS . According to the author, Section 18 of the
bill is intended to allow the criminal court to release a
license which was suspended or revoked due to a support
delinquency when the defendant is otherwise present in court on
a child support matter and the court determines that the release
of the license is appropriate. The language of Section 18 (page
22, line 36 through page 23, line 4), however, appears to be
substantially broader than the author's intent. The bill
provides that if criminal proceedings are pending, a motion or
order to show cause to request a judicial review of the DA's
decision not to issue a release, as well as a motion or order to
show cause to request a judicial determination of compliance
with a support order or to request a modification of a support
order shall be heard by the criminal court.
Because requests to determine compliance with a support order or
for modification of a support order are uniquely within the
purview of the civil child support court, and because allowing
different courts, civil and criminal, to address such matters
has great potential for creating conflicting orders, the
Committee may wish to amend the bill to limit the matters that
may be heard by the criminal court to review of the DA's
decision not to issue a release of a license.
Additionally, the criminal court may, in lieu of sentencing the
defendant, order diversion in an attempt to secure the
defendant's compliance with his or her support obligation. This
diversion period may extend for 18 months or even longer.
During that period, criminal proceedings are technically
"pending." Section 18 of the bill would require all motions to
review the DA's decision not to issue a release (and all other
motions noted in the above paragraphs) to be heard by the
criminal court. This would appear to be true even if the
defendant was before the civil child support court on another
matter relating to the same child support case. In order to
effectuate the author's intent, and to not inadvertently tie the
hands of the civil court, the Committee may wish to amend the
bill to permit, rather than require , the motion to be heard by
the criminal court.
14) LIABILITY OF THE DA FOR REJECTING A CLAIM FOR MISTAKEN
IDENTITY . The bill provides that, if the DA rejects a claim
that a support order is being enforced against an individual who
is not the obligor named in the order, the claimant may file an
action to court to establish his or her mistaken identity. The
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claimant may also file an action in court if the DA has found
the claim to be with merit, but has failed to take any of the
remedial steps outlined in the bill (and described in (3) above)
to rectify the situation. If the claimant prevails in that
court action, the bill entitles the claimant to actual damages,
attorney's fees and costs, and any other relief the court deems
just.
The Tort Claims Act generally limits liability of public
entities for any injury arising out of an act or omission of the
public entity or an employee thereof. The Legislature may, by
statute, provide that a public entity is liable for certain acts
or omissions, not withstanding this provision. However, where a
public entity is under a mandatory duty imposed by statute to
protect against the risk of a particular kind of injury, the
public entity is liable for an injury of that type proximately
caused by its failure to discharge the duty, unless the entity
demonstrates that it exercised reasonable diligence in the
exercise of that act.
This provision, however, entitles the claimant to damages,
regardless of any amount of diligence exercised by the DA in
resolving the claim of mistaken identity. The statute lays out
specific relief to which a victim of mistaken identity is
entitled to ensure that his or her assets are returned, licenses
released, and that no further enforcement actions are mistakenly
taken against him or her. The damages authorized by this
section, including actual damages, attorney's fees, and such
other relief as the court may deem appropriate, may be seen as
excessive in light of the relief already provided.
The Committee may therefore wish to amend the bill to delete
this damages provision, by striking page 25, lines 33 - 40 and
page 26, lines 1 - 7.
TECHNICAL AMENDMENTS .
a) Due to a drafting error, Sections 19 and 24, which are the
subject of another bill by this author, were inadvertently not
deleted with the latest set of amendments. The author had
previously indicated to Committee staff an intention to remove
these provisions from the bill.
b) Section 25 of the bill (at page 26, lines 15-33) requires the
DA to act on credible information provided by the support
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obligee on the residence or work address of the support obligor.
Minor technical amendments are needed, however, to clarify that
such action is required in all cases in which the obligee is
receiving support enforcement services from the DA, and whether
the information is provided for the establishment or enforcement
of support obligations. In order accomplish this goal, the
Committee may wish to amend page 26, line 17, to delete "has
requested" and in its place insert "is receiving" and on line
21, before "enforcement" insert "establishment or".
AMENDMENTS REQUESTED BY THE ASSEMBLY HUMAN SERVICES COMMITTEE .
The author has agreed, at the request of the Assembly Human
Services Committee, to delete the following provisions from this
bill: Section 5 (page 8, line 36 through page 9, line 5) and
Section 26 (page 30, line 35 through page 31, line 8). These
provisions, therefore, are not discussed in this analysis.
ARGUMENTS IN SUPPORT : The Coalition of Parent Support, writing
in strong support of this measure, notes that AB 380 "enacts a
number of important fairness and due process protections for
child support and welfare reimbursement obligors that our
members report are sorely lacking from existing law."
The California Judges Association notes that this bill will
"facilitate more equitable court review of support orders by
beneficially expanding the parameters for setting aside default
judgments. . . .The bill's provisions for an improved and
speedier administrative process for releasing suspended licenses
and for expanding a municipal court's authority to release
licenses will allow more equitable and responsive utilization
and review of these sanctions by the courts."
REGISTERED SUPPORT / OPPOSITION :
Support
Coalition of Parent Support
California Judges Association
Various Individuals
Opposition
County Welfare Directors Association
National Center for Youth Law
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Analysis Prepared by : Donna S. Hershkowitz / JUD. / (916)
319-2334