Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, Randall W. Magnuson, Judge. Super. Ct. No. D373032.
CANTIL-SAKAUYE, J.
Appellant Oscar N. Pereira (Father) appeals from a 2008 postjudgment order modifying a child support award regarding Amanda (Minor), the only child of his former marriage to respondent Lynnea R. Griep (Mother). In the 1994 dissolution judgment, Father was ordered to pay child support to Mother, and after proceedings before a special master, that amount was modified in 2005, and an amount of arrearages and a payment plan was established through wage assignment. In April 2006, the parties agreed that custody would be changed from Mother to Father, but no adjustments in child support were made.
Father's appeal focuses on his contention that the trial court erred by denying his request for an equitable offset of support overpaid to Mother during the period after Minor began to reside with him. He argues that he met the criteria for such an equitable offset, which would have reduced his arrearages, and he claims that the court erred in ruling that this would have been an impermissible modification of a past support order, under Family Code section 3651, subdivision (c). Among other things, he contends that the Department of Child Support Services for the County of San Diego (the Department) failed to pursue its duties adequately, to enable him to obtain an adjustment of child support more readily. (§ 17400 et seq.; Cal. Code Regs., tit. 22, § 115510 et seq.)
All further statutory references are to the Family Code unless otherwise specified. Generally, child support orders "may not be modified or terminated as to an amount that accrued before the date of the filing of the notice of motion... to modify or terminate." (§ 3651, subd. (c).) Section 3653, subdivision (a) likewise provides: "An order modifying or terminating a support order may be made retroactive to the date of the filing of the notice of motion... to modify or terminate, or to any subsequent date," with some exceptions not applicable here.
The Department has filed a respondent's brief that defends its actions and inactions in the case, and argues that in any event, Father did not suffer any detriment directly from the Department's activities. The Department expressly declines to take a position on whether the trial court should have allowed an equitable offset to the support obligation. Mother has not filed a respondent's brief, except to join in the brief filed by the Department on other issues. We do not consider this to be a concession, and reach the merits of Father's appeal. (In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1078, fn. 1.)
Our review of the record shows that the trial court incorrectly applied the criteria for an equitable offset, because the principles for enforcement of judgments for past due child support allowed the court to exercise its discretion to adjust the overall support obligation, including arrearages, based upon the extent to which Father had already satisfied his obligations, by means of payment of more child support than may have been appropriate while Minor was living with him. (In re Marriage of Trainotti (1989) 212 Cal.App.3d 1072, 1075-1076 (Trainotti); Jackson v. Jackson (1975) 51 Cal.App.3d 363, 368 (Jackson).) Such discretionary determinations on the use of enforcement of judgment remedies do not amount to impermissible modifications of past child support orders. (Ibid.; County of Santa Clara v. Wilson (2003) 111 Cal.App.4th 1324, 1326-1327 (Wilson).)
Although the trial court's finding that Father cannot be entitled to any such offset must be reversed, the balance of the order is appropriate and will be affirmed. We reverse in part with directions to the trial court to exercise its discretion in determining whether an equitable offset toward the judgment of arrearages is appropriate in light of all the relevant circumstances. (§ 290.)
Section 290 provides: "A judgment or order made or entered pursuant to this code may be enforced by the court by execution, the appointment of a receiver, or contempt, or by any other order as the court in its discretion determines from time to time to be necessary."
BACKGROUND
A. Facts
The five-year marriage of Mother and Father was dissolved in 1994, and Mother was awarded custody of Minor (then age 3). From that time until 2005, Father only partially paid his child support obligation pursuant to the original judgment.
Minor was born July 1, 1991, so she turned 18 recently. The issues in this case concern modification of support and adjustment of arrearages during her minority, and we leave it to the trial court upon remand to make any appropriate orders regarding termination of support, in light of the case status as a whole. (§ 3901.)
Mother and Father both remarried, and Father has two more young children. During the period that Mother had full custody, her new husband (now deceased) apparently abused Minor, and Father contends that Mother was a negligent parent. Minor had emotional and other problems from the age of 10 or so.
Because Mother was seeking payment of arrearages, the Department became involved in the case pursuant to section 17400 et seq. The court appointed a special master who testified at the October 7, 2005 hearing about the amount of arrearages that Father owed, from March 1998 to July 2005. The total was $18,928.95 principal, plus interest of $99.47. The court modified the child support that Father should pay to Mother, setting it at $1,221 monthly, effective September 2005. Other orders were made, including awards against Father of sanctions, attorney fees in favor of Mother, and reallocation of the special master's fee, all of which were to be payable by Father by wage assignment at $1,000 per month, effective November 2005.
The Department obtained an order withholding income for child support, and the support amount of $1,221 was correctly deducted from Father's paycheck. However, the resulting wage assignment order for arrearages and sanctions, etc. was originally mistakenly set for only $100 per month, and this continued until late 2006.
Mother and Father decided in April 2006 that Minor should go to live with Father and his new family in Texas, because Minor was having many problems and had run away from Mother's home several times. Mother was in poor health due to multiple ailments. After some delay due to unavailability of Mother's counsel, Mother and Father finalized a stipulation to that effect in September 2006, but without expressly addressing any support issues.
In January 2007, the Department corrected the previous erroneous wage assignment amount, raising Father's payment of arrearages of support and sanctions, etc. from $100 per month to $1,000 per month. At that time, Father was very busy completing a graduate degree and moving to a new residence. He contacted the Department about why the payment had gone up and was told to file a request for a hearing regarding the earnings assignment. He did so in March 2007, obtaining a hearing date of March 26, 2007. His request notified the court and the Department that Minor had been residing with him in Texas since April 2006.
According to Father, in April 2007, Mother's counsel told him that he had filed the wrong paperwork and he should bring a motion to modify the support award. Father agreed to take the hearing off calendar due to conflicts with scheduling for his work and Mother's attorney's lack of availability to work on the problem.
Meanwhile, Father continued to be subject to the wage assignment for payment to Mother of $1,221 a month for child support, routed through the Department. The wage assignment also included $1,000 for arrearages and sanctions, etc. (as increased after Jan. 2007). The April 2006 agreement and the finalization of the September 2006 stipulation that Father would have custody of Minor did not automatically change those deductions. By September 2007, the Department was on notice that Mother was no longer the primary custodial parent, and although it was still collecting payments from Father, it stopped disbursing them to Mother. (The record does not reveal what happened to the payments made by Father after the Department began to withhold them, but since the court ordered an audit at the February 2008 hearing, that matter was presumably included in it.)
On October 29, 2007, Father filed his motion to modify child support, and to seek equitable offset and an accounting. He attached a breakdown of money paid from July 2005 to the present, and requested that the court make a finding on what was owed on arrearages versus the other fees, such as sanctions. He requested an equitable offset for the period from the change of custody in April 2006 to the present.
In November 2007, Mother filed her responsive declaration opposing Father's requests. Mother argued that the court did not have jurisdiction to modify any child support order that represented amounts accrued before the date the motion to modify was filed (Oct. 29, 2007). She contended that she was still entitled to child support because she had a 24 percent timeshare with Minor, because Father made more money, and because he had conducted frivolous litigation in the past.
At the hearing, several issues were raised in the modification request that are not disputed on appeal (e.g., regarding the plane ticket, and job contacts for Mother to make).
Reply papers were filed and the matter was set for hearing November 29, 2007, but was then continued to be heard as a long cause matter February 22, 2008. The parties were referred to a meet and confer conference with the Department, to take place before the hearing.
B. Order after Hearing
On February 22, 2008, Father's motions to modify and to obtain an equitable offset of the child support obligation, against his arrearages, were argued by Father in propria persona and by Mother, through counsel. Father presented his theory that he was entitled to an offset or credit for the amounts that he had paid for support for Minor from April 2006 to the present, against the arrearages, because he had regained custody under special emergency circumstances to help his child, and the child support money he had paid afterwards was not going to the benefit of Minor. Father believed that the equities were in his favor, because Mother had not been providing for Minor since April 2006, except during visitation, nor had she forwarded any of the child support he had paid back to Minor in Texas.
By Father's calculations presented to the trial court, he had paid support to Mother from April 2006 to November 2007 of $23,177.86. During the same period, he paid $10,989.94 toward arrearages. Thus, he argued that even allowing for some timeshare for Mother while Minor was living with Father, he had overpaid support by about $10,339.20. (In his opening brief, he calculates the "overpayment" from April 2006 to September 2007 at $14,087.36.) He sought to have some portion of that money applied against his arrearages debt (calculated in his opening brief at $4,819.41).
The Department's attorney stated that she was not taking any position on the request for an equitable offset. Mother continued to contend the court had no jurisdiction to modify any child support amounts accrued before the date the motion to modify was filed (Oct. 29, 2007).
Father complains that at the hearing, counsel for Mother erroneously cited to section 4700. Former Civil Code section 4700, subdivision (a)(1) was the predecessor statute of current section 3651. (See Trainotti, supra, 212 Cal.App.3d at p. 1074.) Current section 4700 et seq. deals with the "Child Support Delinquency Reporting Law." Such confusion is not surprising in light of the related statutory provisions and amendments, and in any case, did not cause Father any prejudice.
The court discussed the 2005 orders for arrearages and wage assignment, and ultimately ruled that the criteria for an equitable offset had not been met, because even after Minor came to live with him, Father had been continuing to pay support to Mother, without depriving his own household of the necessities. The court distinguished the authorities of Jackson, supra, 51 Cal.App.3d 363, and Trainotti, supra, 212 Cal.App.3d 1072, apparently because the obligor spouses in those cases did not have to pay anything to the other spouse, once the obligor spouse took full custody of the child. Father's financial situation was different, because he still had a support obligation to Mother.
The court then moved on to determine the appropriate modification of the support order, to be effective prospectively from the time Father had filed his motion (Nov. 2007; this was conceded by Mother). (§ 3653.) Although the timeshare was disputed, the court determined that Mother had a child custody timeshare of 24 percent, and her gross monthly income was negative. Mother's attorney stated that Mother was currently being supported by the arrearages payments, and claimed this was justifiable because she had not lived well while Minor was still with her and while Father was behind in his payments. The court also made findings about Father's gross monthly income of $8,630 (together with new mate income of $3,300 for tax purposes), and his five tax exemptions, with monthly deductions for mortgage, property tax, etc., resulting in an adjusted new income of $7,448 per month. According to the standard child support computer program, the support payable to Mother should be set at $692 per month, effective November 2007, and that was ordered.
Based on ongoing confusion at the hearing about the separate $1,000 wage assignment order and whether it represented only arrearages or also other sums (the previously ordered sanctions and fees), the court consulted with the Department's counsel and ordered that a fiscal audit be performed within 90 days, to distinguish between the amounts to be paid for current support versus arrearages. The court explained that this procedure was different from issuing Father a certified payment history, which had previously been done. The court set a review hearing for June 17, 2008.
Mother's attorney requested an award of attorney fees of approximately $6,000, dating back to April 2007, billed at a discounted rate. The court ordered that Father should contribute $2,500 toward Mother's attorney fees, payable at a rate of $50 per month. If two or more payments were missed, the entire amount would become due and owing. The formal order was prepared by Mother's counsel. Father filed a notice of appeal and is representing himself in propria persona.
DISCUSSION
I
INTRODUCTION; ROLE OF DEPARTMENT
Father mainly seeks relief from the denial of his equitable offset request, on the ground that the trial court failed to recognize that due to the support he gave Minor in his home from April 2006 until September 2007 (when the Department stopped forwarding payments to Mother), his responsibility for payment of the judgment of arrearages should have been diminished, under equitable criteria. He argues he is not seeking any retroactive modification of child support, such as would be forbidden under section 3651, subdivision (c), or section 3653, subdivision (a).
In addition to arguing that the trial court misapplied California case law and statutes in making its equitable offset decision, Father contends he is entitled to relief because the Department "abnegated its duties by failing to fully investigate the change of custody and change in circumstances to withhold support payments from [Mother] although the agency had actual or constructive notice that [Mother] no longer had primary custody of the child." The Department's respondent's brief vigorously disputes that any such "abnegation of duty" occurred, and goes on to contend that even if any such failures occurred, they would not have entitled Father to the relief requested, for various reasons. In any case, the Department has never taken any position on whether the trial court should have ordered any equitable offset, apparently believing that that is a matter between the parents.
As a threshold matter, we seek to clarify that the equitable offset issue that is actually presented on appeal does not require any examination of the Department's interpretation or performance of its duties, which are prescribed by state regulations. (Cal. Code Regs., tit. 22, § 115510 et seq.) The authors of Witkin, Summary of California Law, explain the Department's role in such proceedings as follows: "In actions involving support or paternity, the local child support agency and the Attorney General represent the public interest. No attorney-client relationship is created between the agency or the Attorney General and any person by virtue of carrying out their duties. [Citations.]" (11 Witkin, Summary of Cal. Law (10th ed. 2005) Husband & Wife, § 318, p. 421.) The Department is not eligible for attorney fee awards in this context, regarding the merits of the positions taken. (§ 3652.) Father has failed to provide authority or reasoning to support any right to relief on his part that is directly connected with the manner of performance of the Department's statutory duties.
California Code of Regulations, title 22, section 115510 et seq. allow a party to request the Department to process a review of child support orders for potential adjustment, pursuant to prescribed procedures, where a change in circumstances appears to exist within the definitions of those regulations. (Cal. Code Regs., tit. 22, §§ 115525, 115535.)
We accordingly must return to the issue of whether the trial court, as argued, misapplied California case law and statutes in making its equitable offset decision.
II
RULES OF REVIEW; ENFORCEMENT OF JUDGMENT
Modifications of child support awards are normally reviewed for abuse of discretion. (In re Marriage of Butler and Gill (1997) 53 Cal.App.4th 462, 465.) "[I]n reviewing child support orders we must also recognize that determination of a child support obligation is a highly regulated area of the law, and the only discretion a trial court possesses is the discretion provided by statute or rule. [Citations.]" (Ibid.)
The important distinctions between modifying child support orders, and enforcing a support arrearages judgment, were succinctly summarized in the case of In re Marriage of Tavares (2007) 151 Cal.App.4th 620(Tavares), as follows: "The Legislature has established a bright-line rule that accrued child support vests and may not be adjusted up or down. [Citations.] If a parent feels the amount ordered is too high--or too low--he or she must seek prospective modification. [Citations.] Accordingly, a trial court has no discretion to absolve an obligor of support arrearages, or interest thereon. [Citations.] [¶] True, the trial court may determine a parent has satisfied his or her support obligation in a manner other than direct financial payments, as where the parent assumes increased physical custody of the child. [Citations.] And where a parent has made payments beyond those ordered, the court may credit the surplus to arrears. [Citation.]" (Id. at pp. 625-626.) The justification for such a credit of "overpayments" is that the court retains equitable discretion concerning the extent of the appropriate enforcement of the judgment for accrued support, which represents the same underlying child support obligation as do the monthly payments. (§ 290; Wilson, supra, 111 Cal.App.4th 1324, 1326-1327; see Messenger v. Messenger (1956) 46 Cal.2d 619, 630.)
Thus, we are dealing with the intersection of two separate bodies of law, and must evaluate how the current and prospective child support obligations should be reconciled with the rules allowing discretionary enforcement of judgment for past due support arrearages. (See 11 Witkin, Summary of Cal. Law, supra, Husband & Wife, § 273, pp. 354-356.) Under section 290, family law courts have discretion to ensure judgments are properly enforced, by ordering execution, receivership, contempt proceedings, "or by any other order as the court in its discretion determines from time to time to be necessary."
Numerous cases, including Trainotti, supra, 212 Cal.App.3d 1072 and Jackson, supra, 51 Cal.App.3d 363, have recognized that the family court may exercise its discretion in applying the statutory requirements of sections 3651 and 3653, to allow an offset toward an obligor's accrued child support obligations for expenses that were incurred during a time period in which the child was transferred to the obligor's custody and the obligor paid for her care. A court may properly refuse to enforce all of an obligor's support obligations during such a time period, without violating the statutory prohibition against retroactive modification, "because the arrearages are deemed satisfied by the obligor's direct provision for the child's needs during the applicable period of time." (Hogoboom and King, Cal. Practice Guide: Family Law (The Rutter Group 2009) ¶ 17:81.1, p. 17-32; see also In re Marriage of Robinson (1998) 65 Cal.App.4th 93, 98.)
In Trainotti, supra, 212 Cal.App.3d 1072, the appellate court confirmed that a trial court has discretion to determine the appropriate remedy for enforcing a child support order "regardless of the procedural context in which the issue was raised." (Id. at p. 1075.) Accrued arrearages are treated as a money judgment, so that in exercising its discretion, the court is "required to credit the judgment debtor with any setoff to which he is entitled or to enforce a prior agreement or settlement between the parties." (Ibid.; see In re Marriage of Perez (1995) 35 Cal.App.4th 77, 80.) The equitable right to a setoff can be held by either party to a transaction, and it is not required that the parties have a great economic disparity between them, although that is one factor that can be considered. (Jackson, supra, 51 Cal.App.3d at p. 367;Keith G. v. Suzanne H. (1998) 62 Cal.App.4th 853, 862.)
The equitable considerations that may apply when there is a request for credits or offsets for past overpayments include evaluation of the respective sums due, whether there was an absence of need during one of the periods involved, whether there is any indication that the minor will be harmed if credit is given toward the accrued obligations, or whether there are unclean hands on either side. (In re Marriage of Peet (1978) 84 Cal.App.3d 974, 980-981 (Peet); Keith G., supra, 62 Cal.App.4th 853, 858-862.) In Keith G., the appellate court applied such equitable criteria to approve a trial court order that allowed setoff of the father's child support arrearages against a conflicting child support amount owed by the mother, because the amount of arrearages was not changed; instead, there was effectively an exchange of support payments owed between those parents. (Ibid.)
Where requests for equitable offsets are made, but there is no enforceable judgment nor any enforcement issues, these offset rules cannot be applied. For example, in Wilson, supra, 111 Cal.App.4th 1324, 1325-1327, the court was presented with a simple modification request. The appellate court determined that an incarcerated father's motion to modify child support (requesting that the arrears be "set to $0" for the months he had been incarcerated) should not have been granted, since that effectively "forgave" or modified his accrued support arrearages. The Court of Appeal concluded the trial court erred in reducing the arrearages because the only issues before it concerned the modification request, not a child support enforcement action. Accordingly, there was no legal basis for the court to allow such equitable relief from judgment. (Ibid.; also see 11 Witkin, Summary of Cal. Law, supra, Husband & Wife, § 276, pp. 358-359, citing In re Marriage of Robinson, supra, 65 Cal.App.4th 93, 96, to distinguish between proceedings on a writ of execution, and the original judicial determination of a modification request.)
In this case, the challenged orders encompass both a 2005 judgment for arrearages, with a separate payment plan, and also a prospective and ongoing monthly support order. There was a change in circumstances (and expenses) of Minor's residence in April 2006, but without any modification at the time of that support order. These circumstances also include an unexplained delay by the Department in implementing the $1,000 per month payment plan for the arrearages (since only $100 per month had been in effect until January 2007). Although Father filed a request to review the wage assignment order in March 2007, he did not seek modification of the child support order until October 2007, for various reasons, apparently because he and Mother's attorney had scheduling problems, and she told him that he had filed the wrong paperwork. Under all those relevant circumstances, it is important for the family law court, and this reviewing court, to analyze the enforcement issues for the judgment of arrearages separately from the monthly support order, in evaluating Father's current challenges to it.
Under Code of Civil Procedure, section 695.210, subdivisions (a) through (d), the amount required to satisfy a money judgment "is the total amount of the judgment as entered or renewed," subject to additions for costs or interest, and subject to "(c) the subtraction of the amount of any partial satisfactions of the judgment," or "(d) the subtraction of the amount of any portion of the judgment that is no longer enforceable." As a matter of law, under that section and section 290, amounts partially satisfying the judgment must be credited to the judgment debtor, and newly assumed child support expenditures may fall into that category, under the circumstances outlined in Jackson, supra, 51 Cal.App.3d 363 and Trainotti, supra, 212 Cal.App.3d 1072, where there was a change in custody. (See also Code Civ. Proc., § 695.221, setting forth the method for crediting monies paid toward judgments of support.)
In Jackson, the court held that such questions of statutory interpretation presented upon undisputed facts are subject to de novo review, through the application of principles of law to the established facts. "As we view it these facts were such as to permit the trial court, in the exercise of discretion and by the application of equitable considerations," to deny a certain method of enforcement of judgment of child support arrearages. (Jackson, supra, 51 Cal.App.3d at p. 366.) The court accordingly remanded the case for reconsideration, because the trial court had erroneously believed it had no discretion to consider the matter of equitable offset, even though the facts showed that the paying spouse had satisfied the legal and equitable liability to pay, to a certain extent.
In applying all these principles, we must keep our focus upon Minor's entitlement to the support award, not upon the respective interests of Mother and Father in obtaining or avoiding payment. It is well-settled that " ' "the child's need for sustenance must be the paramount consideration" ' " and the support obligation " ' "runs to the child and not the parent." ' " (Jackson, supra, 51 Cal.App.3d at p. 368; Tavares, supra, 151 Cal.App.4th at p. 625.) This is not a case in which child support obligations are being incorrectly compared to community property debts between the spouses; rather, both this judgment for arrearages and the monthly support orders are child support sums. (See Hogoboom and King, Cal. Practice Guide: Family Law, supra, ¶¶ 18:40-18:41, pp. 18-16 to 18-16.1; Keith G., supra, 62 Cal.App.4th 853, 859-860.)
III
APPLICATION OF RULES REGARDING CHILD SUPPORT AWARDS, MODIFICATION, AND ENFORCEMENT
It is not disputed that after Father filed his motion to modify (Oct. 29, 2007), the trial court was empowered under section 3651, subdivision (c) and section 3653, subdivision (a) to reduce the amount of monthly support payable to Mother, prospectively (from $1,221 to $692, effective Nov. 1, 2007). At the same time, Father apparently remained subject to the payment plan for arrearages of $1,000 per month. (The court also added a $50 per month attorney fee obligation totaling $2,500; see pt. IV, post.) The court properly ordered an audit to determine what amounts were owing on arrearages, other assessments, and current support obligations.
The portion of the order challenged on appeal is the trial court's finding that Father did not meet the criteria for an equitable offset to arrearages, to effectively give him a credit of support amounts "overpaid" during the April 2006-September 2007 period that Mother was receiving the full $1,221 monthly, plus $100 or $1,000 arrearages, despite the small (24 percent) timeshare that she had. The court's reasoning was that in Jackson, supra, 51 Cal.App.3d 363 and Trainotti, supra, 212 Cal.App.3d 1072, the obligor parent who took over custody should be excused from continuing to pay the original custodial parent (the mother), after he did so, because he needed to use that money to provide for the children while they were in his household. In contrast, the father/obligor in this case was able to continue to pay support (as well as arrearages).
In making this distinction, the trial court may have been stating that Father was not entitled to an equitable offset simply because he still had the ability to continue to pay support, such that all those monies could be viewed as appropriately going either toward his arrearages or toward Mother's ongoing need for support for her 24 percent visitation share. However, the court erred as a matter of law in determining that Father could not meet the criteria for an equitable offset, because there was not only a separate arrearages judgment that was subject to discretionary enforcement, but there was also a separate payment plan of arrearages, that could have been subject to discretionary adjustment if the equities of the case allowed. (Code Civ. Proc., § 695.210, subds. (c) & (d).) At all the relevant times, Mother's entitlement to payment of the arrearages judgment remained subject to the equitable control of the court, regarding the method, extent, and timing of the enforcement of that judgment. (Jackson, supra, 51 Cal.App.3d 363; Trainotti, supra, 212 Cal.App.3d 1072; Wilson, supra, 111 Cal.App.4th at pp. 1326.) The trial court has not yet had an opportunity to exercise its discretion, using the proper criteria, as we next explain and on remand, it must do so.
When we apply both section 290 and Code of Civil Procedure section 695.210, subdivisions (c) through (d) to this record, it appears that the requested credits toward arrearages, accrued during the period that Father had custody but continued to pay full support, represent at least in part "the amount of any partial satisfactions of the judgment" (Code Civ. Proc., § 695.210, subd. (c)), or "the amount of any portion of the judgment that is no longer enforceable" (Code Civ. Proc., § 695.210, subd. (d)), if equitable factors will support subtracting those amounts from the total amount required to satisfy the money judgment for arrearages. Evaluation of these equitable factors must be carried out in the trial court's discretion, such as a comparison of the respective sums due, the respective needs during the periods involved, whether there is any indication that Minor will be harmed if credit is given toward the accrued obligations, or whether there are unclean hands on either side. (Peet, supra, 84 Cal.App.3d 974, 980-981.) Father will not be erroneously "absolved" of arrearages, if instead he is credited with other means of satisfying his support obligations, during the relevant time period. (Tavares, supra, 151 Cal.App.4th 620, 626.)
We caution that the trial court is not required to accept Father's repeated emotional arguments that he is entitled to special consideration or credit against the arrearages, simply because he had regained custody under special emergency circumstances to help his child; that does not necessarily amount to a showing of unclean hands nor unfitness of Mother. Nor is it particularly relevant that at the time of the hearing, Mother was using the payment of arrearages for her own support, since it is not disputed that arrearages were properly owed and the trial court could properly assume that she and the child "had not lived well" while Father was previously underpaying support. We emphasize that the child support monies due on both sides of the ledger, both past due and prospective amounts, should instead be treated on a fiscal and accounting basis in this case.
Upon remand, the proper procedure will require, first, an examination of the sequence of events to assess the separate portions and extent of Father's support obligation. The 2005 judgment for arrearages ($18,928.95 principal, plus interest of $99.47) must be treated separately from the ordinary child support that was ordered, beginning November 2005, and again as modified, effective November 2007.
In calculating the remaining amount of arrearages owed from the 2005 judgment, the payments Father made from November 2005 forward must be credited to him (along with a determination of what amounts were paid toward the separate sanctions and fees previously awarded). As previously noted, different amounts were collected and disbursed when the $100 per month order was in place, and when it was corrected to $1,000 per month. The effect of the Department's evident mistake in implementing that arrearages payment plan is unclear: more arrearages would have been paid if the full $1,000 had been assessed, but it appears that neither Father nor Mother brought this to the Department's attention. Also, some amounts were collected by the Department from September 2007 until the February 2008 hearing, but not disbursed to Mother, as the audit presumably will have revealed.
Once the trial court has established the remaining amount of arrearages, it must evaluate the case law criteria for whether, in its discretion, it should allow Father an equitable offset of support arguably "overpaid" for the period between April 2006 and September 2007. This is a matter of determining to what extent the judgment should be enforced and collected, as illustrated in Trainotti, supra, 212 Cal.App.3d 1072, and Jackson, supra, 51 Cal.App.3d 363. (Wilson, supra, 111 Cal.App.4th at p. 1326.) The court has the discretion to control the enforcement of the judgment for arrearages, and it must consider whether the original $1,000 per month payment plan for arrearages is now excessive in light of all the relevant circumstances. Although a court may not "absolve" Father of liability for arrearages, it may legitimately give him credits he earned against the amounts due. (Tavares, supra, 151 Cal.App.4th 620, 626.)
The record supports inferences that Father's expenses increased to some extent, to support Minor to a greater degree when she came to live with him after April 2006. Likewise, Mother's 24 percent timeshare factor, evidently in place from April 2006 forward, may be utilized as an equitable consideration in evaluating the amounts that should be credited toward arrearages due. These are equitable factors regarding Father's efforts to satisfy the arrearages judgment, which can be considered without impermissibly "forgiving" arrearages nor retroactively modifying the monthly support order. (Tavares, supra, 151 Cal.App.4th 620, 625-626; Wilson, supra, 111 Cal.App.4th at p. 1326; Perez, supra, 35 Cal.App.4th 77, 80.)
Although Father failed to make the right type of motion to modify the ongoing child support order until October 2007, that does not affect the need to apply other equitable factors to evaluate all the relevant circumstances regarding the arrearages, including his dealings with the Department and with Mother and her attorney. Thus, an equitable offset may properly be applied to the judgment for arrearages, if the trial court in its discretion determines that Father was otherwise satisfying his original obligations to Minor, during the relevant time period, by paying amounts for current support that exceeded his fair share, so that some portion of his expenses incurred for her benefit should have been credited toward his arrearages. Upon remand, the trial court should also take into account the results of any audits performed.
Ultimately, the goal will be to leave intact that portion of the monthly payment to Mother that represents the ongoing child support obligation, which was not modifiable until November 2007, while, if appropriate under all the circumstances, adjusting the amount owing for the judgment for arrearages, since Mother's entitlement to collection of the judgment was at all times subject to the equitable control of the court. Finally, the court's exercise of its discretion in considering the equitable offset issue must recognize the effect of Minor reaching the age of 18, or if the termination of support date should otherwise be determined. (See § 3901; fn. 3, ante.)
IV
ATTORNEY FEES
Trial courts " 'have a duty at the conclusion of the case to make a just and reasonable award of attorney fees and costs, considering the circumstances of the parties.' " (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 315.) That determination is reviewed for abuse of discretion. (Id. at pp. 314-315.) An award is justified where "just and reasonable under the relative circumstances of the respective parties." (§ 2032, subd. (a).) "In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately...." (§ 2032, subd. (b).)
Father has challenged this award only by mentioning it in the introduction and conclusion of his opening brief, but he cites no authority and makes no arguments about why the $2,500 award of attorney fees to Mother was improper. The award represents about half of what the attorney for Mother was requesting, and it appears that the trial court made a considered decision about the amount properly owing, and imposed an appropriate payment plan. We cannot find any abuse of discretion in that respect.
In conclusion, the order is reversed to the extent that the trial court erroneously determined that Father could not met the criteria for obtaining an equitable offset to the judgment of arrearages, and the matter is returned to the trial court to reconsider the enforcement of judgment and offset issues in light of the views expressed above.
DISPOSITION
The trial court's order is reversed insofar as it denied any equitable offset, and affirmed as to the balance. Upon remand, the trial court shall allow any appropriate further proceedings that will enable it to evaluate the applicable equitable criteria and to determine the amount of any credits or offsets to be applied to the arrearages judgment, based upon the relative positions of the parties while Father had sole custody of Minor. Each party to bear his, her, or its own costs on appeal.
WE CONCUR: McDONALD, J., AARON, J.