Opinion
2d Civil No. B164128.
10-27-2003
In re Marriage of MICHAEL EDWARD and DENISE KAY NATION. MICHAEL EDWARD NATION, Respondent, v. DENISE KAY NATION, Appellant.
Harper & Associates and Tamara L. Harper for Appellant. Lascher & Lascher and Denise A. Brogna for Respondent.
Denise Kay Nation appeals an order denying her relief in her application for an order to show cause (OSC) to modify child support to reimburse her for expenses she incurred for her sons medical treatment. We conclude that the court properly denied retroactive reimbursement from her former husband, Michael Edward Nation, for the expenses she incurred prior to the filing date of her OSC. We affirm.
We refer to the parties by their first names not from disrespect, but to ease the readers task.
FACTS
On November 4, 1986, the court entered a final judgment of dissolution of the parties marriage which incorporated their signed marital settlement agreement. In the agreement, Michael agreed to pay Denise child support for their son. The agreement did not mention additional child support for future uninsured medical expenses ("add-ons"). Denise and Michael never discussed that issue.
On April 24, 2002, Denise filed an OSC for modification of child support seeking reimbursement from Michael for $15,702.31. She claimed that amount was one-half of their sons uninsured medical expenses incurred from January 3, 2000, to April 23, 2002. Her declaration stated, "Our son . . . has been receiving treatment at Anacapa Hospital. Pursuant to Family Code Sections 4062 and 4063, I am requesting reimbursement . . . ." She attached copies of medical bills showing her son had attended individual and group counseling sessions over a two-year period. Her declaration did not mention why she did not file the OSC in 2000. Her financial declaration said her average net monthly disposable income was $1,538, she had $45,000 in debts and $35, 249 in liquid resources.
All statutory references are to the Family Code.
Michaels declaration stated, "I never received notice from [Denise] of the claimed medical expenses, nor is there any provision in our judgment of dissolution for the payment of said expenses." His average net monthly disposable income is $1,653, his debts total $5,887, and he has $128,612 in liquid resources.
At the hearing, Denise called Paul Warner, the childs grandfather, who testified about where Denises son had been living. Denise did not testify, nor did she present any other evidence. The court ordered Michael to pay one-half of the medical expenses "incurred on or after April 24, 2002." The court denied retroactive reimbursement prior to the date of the filing of the OSC.
DISCUSSION
I. Michaels Responsibility for Expenses Incurred Prior to April 24, 2002
Denise contends the legislative intent was to make child support "add-ons" for uninsured medical expenses fully retroactive. She contends the trial court erred by not ordering Michael to reimburse her for one-half of the expenses she incurred before she filed the OSC. We disagree.
"`"`[T]he trial courts determination to grant or deny a modification of a support order will ordinarily be upheld on appeal unless an abuse of discretion is demonstrated. [Citation.] . . . "" (In re Marriage of Corman (1997) 59 Cal.App.4th 1492, 1497-1498.) In determining the legislative intent, we "". . . scrutinize the actual words of the statute, giving them a plain and commonsense meaning. . . ." [Citation.]" (Id. at p. 1498.)
Section 4062, subdivision (a)(2) authorizes the court to award "additional child support" for "reasonable uninsured health care costs for the children . . . ." Section 3653, subdivision (a) states, "An order modifying . . . a support order may be made retroactive to the date of the filing of the" OSC. Section 3651, subdivision (c) states a support order "may not be modified . . . as to an amount that accrued before the date of the filing" of the OSC. (See also § 3603.) These provisions are consistent with the general rule that these orders operate prospectively. (In re Marriage of Goosmann (1994) 26 Cal.App.4th 838, 844; see also In re Marriage of Perez (1995) 35 Cal.App.4th 77, 80.)
Denise contends that section 4062, which authorizes additional child support for medical expenses, has no such limitation. She argues that the limited retroactivity provisions of sections 3651 and 3653 apply to traditional child support modifications, but do not apply here. We disagree.
Section 4062 describes the types of expenses which qualify as additional child support. It does not mention retroactivity or a procedure for modifications of support orders or postjudgment OSCs.
Denises OSC requested a modification of child support to increase Michaels liability because of the medical expenses. She utilized the same procedure that governs all support modifications. Sections 3651 and 3653 are in the legislative chapter involving modification of support orders. (§ 3651, subd. (a).) That chapter broadly applies to all types of support modifications, including "child, family, or spousal support order[s]." (§ 3650.) The retroactivity limitation to the filing date of the OSC applies to both postjudgment OSCs and modifications made "during [the] pendency" of a proceeding. (§§ 3603, 3651, 3653.)
This shows a consistent legislative policy to protect the rights of support obligors by giving them prompt advance notice of changes in their potential liability. Courts have recognized that "[i]t would work a serious injustice . . . to allow retroactive child support without proper notice . . . ." (In re Marriage of Goosmann, supra, 26 Cal.App.4th at p. 845.) By limiting the retroactive application of modifications to the OSC filing date, parties who relied on the judgment are protected. (In re Marriage of Perez, supra, 35 Cal.App.4th at p. 80.) This ensures that support obligors will not be surprised by large postjudgment retroactive liability claims that they did not incur and could not anticipate. It encourages those who seek modification of judgments to act promptly. (Id. at p. 81.)
The provisions involving "add-ons" for uninsured health costs also reflect a legislative intent that the support obligor must receive prompt notice. Section 4063, subdivision (b) states the parent who incurs health care costs "shall provide the other parent with an itemized statement of the costs . . . not more than 30 days after accruing the costs."
Because sections 3651, 3653 and 4062 involve the same general subject matter, support, we do not view them in isolation. We construe them in harmony with each other. (Hansen v. Department of Social Services (1987) 193 Cal.App.3d 283, 295.) "It must be assumed that the Legislature . . . intended to maintain a consistent body of laws. [Citation.]" (Ibid.) The trial court properly applied the retroactivity limitations of sections 3651 and 3653.
In re Marriage of Lusby (1998) 64 Cal.App.4th 459
Relying on Lusby, Denise contends retroactive reimbursement for medical expenses may be awarded for a time period before the filing of a postjudgment OSC. In Lusby, the wife filed an OSC for child support in April 1993. The parties agreed the court would decide the issue at trial and make the support order "retroactive to April 1993." (Id. at p. 465.) They agreed "future noncovered medical . . . costs . . . would be shared equally . . . ." (Ibid.) The wife filed a second OSC two weeks after the entry of the dissolution judgment claiming the court told her to raise the medical expense issue in "a post-Judgment" OSC. (Ibid.) The Court of Appeal affirmed the granting of retroactive reimbursement to the date of the filing of the first OSC. It held the trial court reserved jurisdiction for the postjudgment proceeding and the parties agreed to retroactive relief.
But the facts which supported the result in Lusby are not present here. Michael did not know about the medical expenses until after Denise served him with the OSC. There was no agreement about retroactivity and sharing medical costs. The parties did not agree to resolve the issue in a postjudgment proceeding. In Lusby, the court prevented the wife from litigating the medical expense issue at trial and she promptly filed the second OSC only two weeks after judgment.
Here Denise filed the OSC almost 16 years after the entry of judgment and almost 2 and one-half years after incurring the first medical bill. She notes that the trial court said the facts in her declaration showed diligence.
But her declaration contained no facts showing diligence, nor did she mention why there was a two-and-a-half-year delay. Denise did not testify about these issues at the hearing.
Instead of evidence, Denise supplies unsworn statements in her trial court brief that she was unable to locate Michael. (Sanford v. Smith (1970) 11 Cal.App.3d 991, 999.) Moreover, her brief indicates that she was able to locate Michaels address only a short time after she subpoenaed his bank records in March of 2002. She offers no evidence to show why she could not have subpoenaed these records in 2000 or 2001.
It is true, as Denise argues, that a parents extended preoccupation with a childs health problem or emergencies may establish grounds for excusable delays. But the evidence does not show such grounds exist here. It is also true that trial courts have equitable power to grant relief. But that would not change the result. The court must have a factual record to weigh the equities with the facts which support relief for Denises long delay. But Denise did not testify and failed to present evidence to support such relief.
The order is affirmed. Each party shall bear their own costs on appeal.
We concur: YEGAN, J., and PERREN, J.