ACFLS Family Law Blog

Marriage of Kacik (2009) 2009 WL 3862452

Decided by the Fourth District on November 19, 2009

Holding: There is a time limit on a supported spouse’s ability to obtain a modification of spousal support based on the cessation of child support under Family Code Section 4326.

Summary of the facts: Laurie and Richard Kacik were married for 16 years and had one child, who was 11 years old when they separated. They were divorced pursuant to a stipulated judgment filed June 8, 2001. According to the opinion, “(e)ach was represented by counsel. The stipulated judgment provided for $1,125 a month in child support from Richard to Laurie, which was to last until Alexander reached the age of 18. Richard was also to pay Laurie $1,625 in spousal support for seven years, after which spousal support was to be reduced to zero on February 15, 2008, but the court was to retain jurisdiction over support until death, remarriage or further order of the court.”

The parties’ son reached age 18 in August of 2006. 17 months later, on February 15, 2008, which was the exact date on which support was to reduce to zero, W filed an OSC requesting modification of the stepdown. She claimed an inability to be self-supporting and also based her modification request on the loss of child support. After the matter came to hearing, the trial court granted W’s modification request, announcing her decision prior to any argument. While the judge was stating the reasons for her decision, she stated that “’the child no longer lives with her” was the change in circumstances justifying modification of the spousal support order. When Richard’s counsel asserted that the change was ‘over two years ago,’ the trial judge acknowledged the passage of time, then changed the subject.” The court ordered H to pay W $1,625 per month retroactive to February 15, 2008. H appealed, and the Fourth District reversed.

The result on appeal: The panel held in a case of first impression that although the phrase “in effect” in Family Code Section 4326 does not require child support to be presently payable, there is a limit on the time after cessation of child support that the support payor can request a spousal support modification on that basis alone.

Family Code Section 4326 provides that “(a) In a proceeding in which a spousal support order exists or in which the court has retained jurisdiction over a spousal support order, if a companion child support order is in effect, the termination of child support pursuant to subdivision (a) of Section 3901 constitutes a change of circumstances that may be the basis for a request for modification of spousal support.” Holding that “(t)he key word in section 4326 is . . . is,” it said that

“(t)he question of first impression is what the Legislature meant by the words ‘if a companion child support order is in effect,’ and particularly what it meant by the phrase, ‘is in effect.’ Or, put another way: How much time can elapse before is becomes was?’ It held that ‘the phrase ‘is in effect’ should not be narrowly construed to deprive the family court of jurisdiction to make an order under section 4326 just because the child has already reached the age of the majority, even though, under section 3601, a child support order is, technically, no longer ‘in effect’ the day after a child reaches the age of majority. Thus a family law court is not deprived of jurisdiction to make an order under section 4326 simply because a child, for example, turned 18 a few days before the supported spouse made a request for modification under section 4326.’

To reach this conclusion, it reasoned that its job was to determine ‘(w)hat did the Legislature mean – or intend – when it wrote the words, ‘a companion child support order is in effect’?’ It said that neither prior cases nor the bill’s committee reports directly addressed this issue. It observed that Family Code §3601 ‘directly addresses when a child support order is ‘in effect’’ by stating that ‘(a) child support order is ‘in effect until the order is (1) terminated by the court, or (2) terminates by operation of law pursuant to Sections 3900, 3901, 4007, and 4013,’ that is, until the child reaches the age of majority and support is terminated under section 3901.’ However, held the panel,

“there’s a problem with a construction of section 4326 that simply imports the literal language of 3601 into section 4326. The problem is the word ‘termination,’ as in the phrase, ‘the termination of child support pursuant to subdivision (a) of Section 3901 constitutes a change of circumstances . . . .’ Construing the conditional words, ‘is in effect’ to exclude any time at all after the formal ‘termination’ of the child support order reads the words ‘the termination’ to mean, in practicality, ‘the upcoming termination’ or ‘the prospective termination.’

To be sure, the two readings can be literally harmonized by treating the words ‘the termination’ as a fixed point in time and space, regardless of whether one is looking forward toward an upcoming termination, or backward toward one that has already happened. Thus harmonized, one would read section 4326 to apply only to modification requests made prior to the termination of support, that is, while the ‘companion child support order’ was still ‘in effect.’

Even so, such a reading seems at odds with the basic purpose of the statute. The basic purpose of the statute is to allow supported spouses no longer receiving child support to ‘make the case’ for a modification of spousal support because of the termination of child support. Basically, a reading that precluded all modifications filed after formal termination would deprive trial judges of the data they would need to make an informed decision concerning the modification request.

…

We therefore decline to construe the words ‘is in effect’ in pari materia with section 3601 such that section 4623 would automatically not apply the day after a child reached his or her majority. Given the purpose of the statute, it seems that Legislature wanted to treat the termination as the change of circumstances warranting modification. It would defeat the purpose of section 4326 to require the modification be filed before the actual change even though the literal language of section 3601 would point in that direction, and we decline to do that.”

It then directly tackled the issue, stating that “if a supported spouse is not required to file a modification request prior to the day the child support order expires, the question remains how long after may such a request be filed? Indefinitely?” In order to answer this question, it reasoned that

“(a) reading of section 4326 that would allow an unlimited amount of time to bring a spousal support modification request after a child support order literally went out ‘of effect’ (under section 3601) would read the words ‘is in effect’ totally out of the statute. If the Legislature had wanted a rule whereby any case in which there had ever been a child support order in effect at any time to be a change of circumstance that could possibly justify a modified spousal support order, it could easily have said so — indeed, all the Legislature needed to do was change one word: is to was, as in ‘was in effect.’ It did not. The Legislature said: ‘ . . . is in effect,’ not ‘was in effect’ or ‘has been in effect at any time.’

Back to the purpose of the statute: The idea was that a spousal support order (typically in a long-term marriage) might be sub-par because a child support order essentially left insufficient money for a par spousal support order. Hence the termination of the child support order would leave the supported spouse with the sub-par order, and no ground to correct it. That suggests that the modification should be brought within a reasonable amount of time after the termination of the child support order, and – given what we have said above about the section 4320 factors that would go into the modification calculus – allowing for enough time for some ‘post-termination’ data to be collected.

A rule requiring a reasonable relationship between the event that the Legislature said could be a change of circumstance justifying a possible modification — the termination of the child support order — and the request both (a) satisfies the purpose of the statute while respecting the Legislature’s choice of words, ‘is in effect.’ For shorthand, we might call such a rule a requirement of reasonable contemporaneousness.”

It then applied the rule to the facts of the case. “(G)uided by what the Legislature has said about deadlines in other contexts, particularly contexts where the burdened party is necessarily aware of some need to act at the time of the event,” it held that

“(i)n light of the Legislature’s concern that a given spousal support award might be the product of the law’s own (i.e., § 4055’s) squeeze out effect because of a high level of child support, it seems hard to justify a modification made after more time has expired than might have been the case of a family law judgment procured through mistake, fraud or perjury. After all, to the degree that a supported spouse in a stipulation, or a judge making a spousal support order, recognized that a given spousal support was sub-par (lower than it otherwise would be absent the child support order), that information was known to the parties at the time of the original order. They would have less excuse than a litigant who had a suspicion that his or her spouse had gained an unfair advantage through a fraud or perjury to sit on their rights.”

“the time period was 17 months, and the OSC was filed on the very day the spousal support order was set to step down to zero. The supported spouse did not bring her OSC for modification in the immediate wake of the termination of the child support, but in view of the impending reduction of spousal support. … Seventeen months belies any temporal relationship between the modification request and the end of child support. Rather, the temporal relationship was clearly the scheduled step down of negotiated support to zero.”

Because of the unusual circumstance of construing a piece of legislation that has less than 18 months before it sunsets, we address the Legislature directly: Section 4326 is scheduled to terminate on January 1, 2011. If you decide to renew it, please consider saying exactly what you mean by ‘is in effect.’ One easy solution: Specify a time frame around the termination date of child support: say, plus or minus six months, when a spousal support modification request based on the termination of child support may be filed. (Cf. Code Civ. Proc., § 473.)”

It reversed the order modifying W’s spousal support with instructions to the trial court “to enter a new order denying the request for modification” without prejudice to W’s filing another motion “based on any changed circumstance other than the termination of child support in 2006 or the step-down that was accounted for by the parties back in 2001.”

My comment: For an appellate court to directly address the Legislature in an opinion is unusual, to say the least. However, this court apparently felt that because the section it applied was scheduled to sunset soon, the Legislature could take that opportunity to clarify its intent with regard to the time period after cessation of child support during which such cessation would constitute a change of circumstances.

Meanwhile, it had to impose its own rule. As a reversal, the case tells us that 17 months is too long, at least where that date is tied directly to a scheduled stepdown in support. Whether or not the holding would still apply if there was no scheduled stepdown is unclear; however, it is obviously a good idea to file the motion as soon after child support ends – or even before it ends if the motion will be heard after that date. It’s not as if that date is difficult to determine or the end of child support is unexpected.

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