Husband and wife divorced in the mid 90's with one minor child. Husband was ordered to pay child support and childcare expenses ($140/mo later increased to $150).

In October 2004, the Orange County Department of Child Support Services (DCSS) filed a motion to increase father's child support obligations and determine arrearages. Father claimed that mother concealed child from him from 1995 to 2003 and prevented him from visiting. He also filed a motion to compel wife to produce documentation re: childcare expenses and argued that he should only be required to pay actual costs, rather than the $140/$150 per month he had been ordered to pay.

The trial court held that neither concealment nor overpayment of childcare expenses would affect his obligation to pay the ordered child support and increased the monthly amount to $1168. The Court of Appeals agreed. Past concealment is not a defense to payment of arrears for a child who is still a minor because the overdue support will still benefit the child. See Marriage of Comer. As to childcare expenses, the Legislature established a brite-line rule that child support vests and may not be adjusted up or down. Childcare costs count as additional child support and , thus, if a parent feels the amount is too high, he must seek prospective modification and cannot seek to adjust it later. (See Family Code, section 3692: 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).

Note: Reiflerizing - lower court's discretion to decide postdissolution motions solely on the parties' declarations.

Case: Marriage of Tavares
Court: Superior Court of Orange County
Judge: Michael Leversen
Certified for Partial Publication Only

Labels: arrears, child support, childcare expenses, concealment of child