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May 22, 2014
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Jim Porter: Child support for mother hiding children?

“This is another frivolous family law appeal. As we shall explain, given well-known appellate rules, it was ‘dead on arrival’ at the appellate courthouse.”

That was the opening paragraph of Boswell v. Boswell decided last month.

DISSOLUTION OF MARRIAGE

Mother and father (Boswell) dissolved their marriage in October 1985. The trial court ordered physical custody of the two children to mother. Father was ordered to pay $70 per month child support per child. Father did so for two months, then mother “disappeared” with the children. She moved from California, changed the children’s names and did not notify father of their new addresses.

Father did not see his children for approximately 15 years, after which the younger child, John Jr. moved in with his dad when he was 16.

ARE YOU KIDDING ME?

Here is the best part of this case. Fifteen years after John Jr. moved in with his dad, i.e. in 2013, when the two children were over 30 years old, mother went to court seeking to enforce the almost 30-year old child support order, asking for $92,734.94 in back payments.

NEED A DUMB LAWYER

Here’s the question: Where do you find a lawyer dumb enough to take a case asking the court for retroactive enforcement of a 30-year old child support order filed after mother had hidden the children for 15 years?

I suppose another question is what are the odds a court would order retroactive child support payments under these bizarre facts?

UNCLEAN HANDS

The Court of Appeal in this Ventura County case explained that family law court is “a court of equity” where the courts exercise discretion to achieve fairness and equity.

To prevail in a court of equity, you must come with “clean hands,” meaning you yourself must not have done anything wrong. Like hide your kids from their father for 15 years.

RULING

The Court of Appeal noted that the trial court found that mother had been “unjust” in her unilateral decision to remove father from the children’s lives. “This is tantamount to a finding of ‘unclean hands’ … These are some of the dirtiest hands we have seen.”

The Court of Appeal upheld the trial court’s ruling that upon a finding of “unclean hands,” the court had equitable discretion to decline to enforce mom’s child support arrearage request. Father wins.

TINY FLAW/TAKE HOME

One of the reasons for the trial court’s ruling denying the request for back-dated child support was that mother had waited too long, 15 years, therefore due to the doctrine of laches, she had waited too long.

The Court of Appeal overturned that part of the trial court Opinion confirming that the defense of laches, waiting too long to go to court, does not apply to child support owed by one spouse to the other.

We include that explanation of the law in case any readers haven’t been paid back-due child support. It may not be too late.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, mediation and other transactional matters. He may be reached at porter@portersimon.com or www.portersimon.com.


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Tahoe Daily Tribune Updated May 22, 2014 05:14PM Published May 22, 2014 12:40PM Copyright 2014 Tahoe Daily Tribune. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.