California Court Explains Retroactive Child Support Orders - In re Marriage of Barth

January 23, 2013, by

"If ever there was a case where the adage 'be careful what you wish for' applied, this is surely it," Judge P.J . Moore recently wrote, introducing the matter of In re Marriage of Barth. As Moore went on to explain, California law allows a court to order a parent to pay retroactive child support going back to an original petition for divorce, even if it was filed in the wrong state.

796465_sunset.jpgJeffrey Barth spent years trying to avoid the enforcement of an Ohio court's ruling granting wife Andrea Barth's petition for divorce, custody and child support, only to have a California court grant similar petitions and order a substantially larger child custody payment.

The couple were married in 1989 and had two children. Ms. Barth filed for divorce in October 2004 after her husband admitted to extramarital affairs, according to the court. Following protracted litigation on the matter, an Ohio court awarded the divorce, granted Ms. Barth custody of the children and ordered Mr. Barth to pay $1,600 per month in child support.

Mr. Barth ultimately had the order overturned after the Ohio Supreme Court agreed that the state courts did not have jurisdiction over the matter because Ms. Barth had not lived in Ohio long enough before filing suit. Prior to the divorce, she left the state with her kids to join Mr. Barth in California, but returned shortly thereafter upon learning of her husband's affair.

Litigation moved to California, where an Orange County court granted the divorce and ordered Mr. Barth to pay retroactive support of between $2,700 and $3,125 per month for 2004 to 2005, $7,645 per month for 2006 and between $1,000 and $3,050 per month for 2007.

On appeal, the Sixth District rejected Barth's claim that the lower court erred in ordering retroactive payments.

In 1999, the California legislature amended state law to provide that a child support order "may be made retroactive to the date of filing the petition, complaint, or other initial pleading." Here, Mr. Barth claimed that the retroactive support order could go back only to 2007, the year in which the California litigation began, rather than 2004, when Ms. Barth originally filed for divorce in Ohio. Noting that the law allowed for payments to be traced back to an "other initial pleading," the court found that the lower court did not err in providing for retroactive payments going back to 2004.

According to the court, Mr. Barth misunderstood the purpose of the law. "[H]e seems to entirely miss the point about child support -- it is intended to support the children, not to punish parents for their litigation tactics (a stone Jeffrey might want to avoid throwing, lest he hit his own glass house)," the court explained.

The question of whether retroactive child support payments are warranted, and how far they should go back, is but one of a number of complicated matters that can arise in divorce and custody cases in California. A person considering a divorce or child custody and support action is well-advised to seek the counsel of an experienced family law attorney. Better yet, consider alternatives to litigation and decide with your spouse how best to co-parent and support your children. With offices throughout the Bay Area, California divorce lawyer Lorna Jaynes provides innovative legal tools to resolve family law disputes without the bitterness and acrimony engendered by the adversarial process.

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