Opinion
E045226
1-29-2009
SAN BERNARDINO COUNTY DEPARTMENT OF CHILD SUPPORT, Plaintiff and Respondent, v. ANTHONY SALVATORE LOGRASSO, Defendant and Appellant.
Anthony Salvatore LoGrasso, in pro. per., for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Douglas M. Press, Assistant Attorney General, Paul Reynaga and Julie Weng-Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
Defendant appeals following an order denying his motion for incarceration credits against his child support arrearages and for forgiveness for nonpayment of child support owed between 2004 and 2006, which accrued while he was incarcerated in state prison. We affirm.
BACKGROUND
On August 25, 1999, a Stipulation for Entry of Judgment was filed in a child support action instituted by the San Bernardino County Child Support Division (County), but no dollar amount was specified. On December 26, 2003, that judgment was modified by the parties stipulation, and defendant was ordered to pay $172 per month for support of his child, commencing January 1, 2004. Defendant was also ordered to pay child support arrearages for the period between the filing of the motion to modify the support order and the date of the order modifying the payments, a total of two months.
On September 21, 2004, defendant was apparently arrested on charges of residential burglary (Pen. Code, § 459), and was later convicted and sentenced to serve a term of six years in state prison for that offense. Upon discovering defendants imprisoned status, the County made a motion to modify the prior child support order, reducing the amount of support payable in the future to zero. However, the order did not affect arrearages that had become due before that date.
On September 12, 2007, defendant filed a "Motion for Incarceration Credits Towards Arrears on Child Support." In addition to incarceration credits, defendants motion also sought an order that $0 was owed on all support payments that accrued between September 21, 2004, and the date on which his motion was to be heard. The motion was denied. Defendant appeals.
DISCUSSION
Defendants arguments center on a single theme: that his incarceration excuses his child support obligations. He reasons, without citation to any legal authority, that being forced to "pay for supporting a human when not allowed to earn money is unreasonable and in [sic] a violation of his rights." Thus, he argues, he should not be held accountable and the order "should be zeroed out." We disagree.
The defendant and mother of a minor child have an equal responsibility to support their child in the manner suitable to the childs circumstances. (Fam. Code, § 3900.) The duty to support ones child is one of the oldest provisions of California law. (County of Shasta v. Caruthers (1995) 31 Cal.App.4th 1838, 1849.) It may not be abridged by the childs parents, and may not be limited or contracted away. (County of Orange v. Smith (2002) 96 Cal.App.4th 955, 962.)
A support order may be modified upon a showing of changed circumstances. (Fam. Code, § 3651, subd. (a).) However, it may not be modified or terminated as to an amount that accrued before the date of the motion or order to show cause to modify or terminate the support obligation. (Fam. Code, § 3651, subd. (c); County of Santa Clara v. Wilson (2003) 111 Cal.App.4th 1324, 1326.) A trial courts determination to grant or deny a request for modification of a child support order will be affirmed unless the trial court abused its discretion, and will be reversed only if prejudicial error is found from examining the record below. (In re Marriage of Pearlstein (2006) 137 Cal.App.4th 1361, 1371.)
Where incarceration affects a parents ability and opportunity to work and affects his or her ability to pay child support, he or she may apply for a modification of the child support order. (Fam. Code, § 3651, subd. (a); In re Marriage of Smith (2001) 90 Cal.App.4th 74, 77.) A court may not impute income to an incarcerated parent in the absence of evidence he or she has both the ability and the opportunity to work in prison. (Ibid.; see also, State of Oregon v. Vargas (1999) 70 Cal.App.4th 1123, 1127.) Because the court lacks power to modify amounts accruing before the requested modification, incarceration of the parent does not result in forgiveness of arrearages that previously accrued. (County of Santa Clara v. Wilson, supra, 111 Cal.App.4th at p. 1326.) Incarceration does not "exempt" an inmate parent from any obligation for support. (El Dorado County Dept. Child Supp. Svcs. v. Nutt (2008) 167 Cal.App.4th 990, 991.)
Here, defendant could have filed a motion or order to show cause for modification or termination of his child support obligation as soon as his earning capacity was impacted by his incarceration. (See In re Marriage of Armato (2001) 88 Cal.App.4th 1030, 1038.) As indicated, a support order may not be modified or terminated as to an amount that accrued before the date of the filing of the motion or order to show cause to modify or terminate the obligation. (Fam. Code, § 3651, sub. (c).) However, defendant did not seek a modification of the child support order.
Given that it is the burden of the party seeking a modification to prove a change of circumstances (In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291, 1303), it is reasonable to impose on the party seeking modification or termination the duty of making the appropriate motion or order to show cause in a timely manner. In the present case, the County brought a motion to modify the prior support order when it was made aware of defendants incarcerated status, although it had no duty to do so. Defendant did not seek a modification until 2007, and cannot complain that the County should have sought the modification earlier where the duty was his to establish the change of circumstances justifying the modification. The County has not sought enforcement of payment of the arrearages, so he is not entitled to additional relief.
Defendant also sought incarceration credits against arrearages in his child support obligation. We have found no authorities—decisional or statutory—conferring the power to do so upon the trial court. Absent any citation of authority, we find no error in the courts denial of the request.
DISPOSITION
The judgment is affirmed.
We concur:
McKinster, Acting P. J.
Richli, J.