Cnty. of San Diego Dep't of Child Support Servs. v. C.P.

In January 2013, the family court ordered respondent C.P. to pay monthly child support. From September 12, 2013, through August 22, 2017, C.P. was incarcerated in federal prison. Less than a month after his release, C.P. promptly filed a request for the court to adjust the child support arrears that accrued during his incarceration-which the parties and the family court handled under current Family Code^[1] section 4007.5. (Stats. 2015, ch. 629, § 2, eff. Oct. 8, 2015; subsequent references to current § 4007.5 are to this section of the legislation.) The court granted C.P.'s request over the objection of appellant San Diego County Department of Child Support Services (Department) (§ 17406), which is the appellant and is represented by the Attorney General in this appeal (§ 17407).^[2]

The family court erred as a matter of law in granting C.P.'s request. Given the unambiguous language in current section 4007.5 and the timing of C.P.'s child support order, incarceration, and request for adjustment of

accrued against them while they are incarcerated and clearly don't have the ability to pay"; and the Legislature enacted current section 4007.5 as urgency legislation "to immediately get this relief back in place."

The Department timely appealed from the October 2017 order granting C.P.'s Request.^[6]

As we explain, because, by its express terms, current section 4007.5 does not apply to C.P.'s Request, the family court erred in granting relief. As we further explain, at the time of the repeal of former section 4007.5, C.P. did not have a vested right to the statutory relief he sought, and the Legislature did not include a saving clause when it enacted current section 4007.5. However, as we finally explain, because C.P.'s Request can be read to seek the adjustment in child support arrears under former section 4007.5, and because the parties have not briefed and the family court has not considered whether former section 4007.5 contains a saving clause, the

intend. If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute's purpose, legislative history, and public policy.' " ' " ( Meza v. Portfolio Recovery Associates, LLC (2019) 6 Cal.5th 844 , 856-857, 243 Cal.Rptr.3d 569 , 434 P.3d 564 .) In particular, we " ' " 'giv[e] significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose.' " ' " ( Ibid . )

Under the Family Code, "child support" refers to "a support obligation owing on behalf of a child" and "includes maintenance and education" as well as "past due support or arrearage when it exists." (§ 150.) Whereas court-ordered child support may terminate upon the happening of any of a number of contingencies (§ 4007, subd. (a) ), there are also situations in which the obligation to pay child support is temporarily stayed (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2018) ¶¶ 6:740 to 6:745, pp. 6-414 to 6-417). At issue in the present appeal is one of these latter situations-i.e., where, upon an appropriate showing, a child support obligation may be stayed temporarily during the obligor's incarceration.

Current section 4007.5 applies only to child support orders "issued or modified" on or after October 8, 2015. ( § 4007.5, subd. (f).^[8] ) Any party, as well as a LCSA, may petition the family court to determine the amount of child support or arrears following an authorized suspension of support under subdivision (a).^[9] ( § 4007.5, subd. (d).)

B. Analysis

1. Current Section 4007.5 Does Not Apply to C.P.'s Request

By its express terms, current section 4007.5 applies only to child support orders "issued or modified on or after" October 8, 2015. ( § 4007.5, subd. (f) ; see fn. 8, ante .)

§ 1), which was arguably unnecessary in light of the sunset provision contained in former section 4007.5 ( id ., subd. (i) ).^[11]

Second, we are persuaded by the Legislature's explanation of the "urgency" that necessitated the determination that current section 4007.5"go into immediate effect": "In order to limit the duration of the interruption in the protections provided by former Section 4007.5 of the Family Code, it is necessary that this bill take effect immediately." (Stats. 2015, ch. 629, § 3, italics added.) By this statement, the Legislature affirmatively acknowledged that, between the repeal of former section 4007.5 and the enactment of current section 4007.5, potentially affected parties necessarily would experience an "interruption" in the statutory protections.^[12]

time the Legislature repealed former section 4007.5, C.P. did not have a vested statutory right, and in enacting current section 4007.5, the Legislature did not intend to save the statutory protections previously available under former section 4007.5.

That said, C.P.'s Request, even though presented on a form intended for use under current section 4007.5, sufficiently put at issue a claim for an adjustment of arrears under former section 4007.5.^[14] Indeed, the family court ruled, albeit incorrectly, that C.P. had a vested right under former section 4007.5. What the family court did not consider, however, is whether former section 4007.5, as opposed to current section 4007.5, contained a saving clause that would allow C.P. the relief he sought in his Request. More specifically, the family court did not consider whether former section 4007.5's "sunset provision" constituted an implied saving clause that affected C.P.'s Request for an adjustment of child support arrears. (See In re Pedro T., supra, 8 Cal.4th at pp. 1044-1052, 36 Cal.Rptr.2d 74 , 884 P.2d 1022 [sunset provision of earlier statute subject to a three-year legislative experiment implied an intent to apply the statute to all convictions

former section 4007.5 (Stats. 2010, ch. 495, § 1; subsequent references to former § 4007.5 are to this section of the legislation), C.P. did not have a vested statutory right to have his support order adjusted, and current section 4007.5 does not contain a saving clause pursuant to which former section 4007.5 could have provided statutory protection for incarcerated child support obligors like C.P.^[3]

However, C.P.'s request can be read to have sought the adjustment in child support arrears under former section 4007.5, which was repealed as of July 1, 2015 ( id. , subd. (i) ); but the parties did not brief and the trial court did not consider whether former section 4007.5 contains a saving clause that provides C.P. with a statutory basis on which to have obtained the requested relief.

Accordingly, we will reverse the order granting C.P.'s request and remand with directions to consider, as appropriate based on briefing to be requested, whether former section 4007.5 includes a saving clause that allows its application to C.P.'s request and, if so, whether C.P. has made a sufficient showing for the relief he seeks.

O

n January 23, 2013, at the request of the Department (§§ 17400,^[4] 17406 (see fn. 2, ante ) ), the family court filed a section 17430 Judgment Regarding Parental Obligations (Judgment) that required C.P. to pay monthly child support of $ 308. C.P. was incarcerated out of state from September 12, 2013, until August 22, 2017, during which time he did not have the ability to pay support.

for more than 90 consecutive days during the time period from September 12, 2013, through August 22, 2017; C.P. did not have the financial ability to pay child support during this time period; C.P.'s incarceration did not result from a conviction for failure to pay child support or for domestic violence against the supported person or the child; and "[the] child support order was made or changed on or after October 8, 2015."

The Department opposed C.P.'s Request. The Department argued as follows: Because current section 4007.5 applies only to child support orders issued or modified on or after October 8, 2015, the current May 2016 order suspending support was the only order at issue; and since, under the May 2016 order, ongoing monthly child support was set at $ 0, there are no "account balances" (i.e., arrears) to adjust under the order.^[5]

The family court heard oral argument in October 2017. The court granted C.P.'s Request and adjusted child support to $ 0 for the time of C.P.'s incarceration, resulting in no arrears for the time period from September 12, 2013, through March 31, 2016. At the hearing, the court orally explained that obligors like C.P. who were incarcerated at the time former section 4007.5 was repealed did not lose their "vested rights" by failing to seek relief prior to the repeal. On the following grounds, the court also ruled that current section 4007.5 contains an implied saving clause, extending the protections of former section 4007.5 : The "entire purpose" of the current legislation is "to continue protecting the people who are incarcerated from having arrears

adjusting C.P.'s arrears: C.P. filed his Request on September 2017, which is more than two years after the repeal of the statute that provided the right he was seeking to enforce . Accordingly, C.P. had not acquired a vested right under former section 4007.5 by the time of its repeal on July 1, 2015 ( Mann , supra , 18 Cal.3d at p. 822, 135 Cal.Rptr. 526 , 558 P.2d 1 ; Beverly Hilton Hotel , supra , 176 Cal.App.4th at pp. 1606-1607, 99 Cal.Rptr.3d 50 ); and the family court erred in ruling otherwise.

Independent of a vested right, when the Legislature repeals a statute but intends to provide statutory benefits after the repeal, the Legislature may include a saving clause either in the repealing act or in other legislation at the session of the Legislature effecting the repeal. ( Beverly Hilton Hotel , supra , 176 Cal.App.4th at pp. 1607-1608, 99 Cal.Rptr.3d 50 [court considered repealing legislation]; Younger v. Superior Court (1978) 21 Cal.3d 102 , 110, 145 Cal.Rptr. 674 , 577 P.2d 1014 [court considered "contemporaneous legislation"].) A saving clause may be express or implied. ( In re Pedro T. (1994) 8 Cal.4th 1041 , 1048-1049, 36 Cal.Rptr.2d 74 , 884 P.2d 1022 [an express saving clause is not necessary, because courts have no authority to dictate the form of the expression of legislative intent].) At a minimum, for a saving clause to be effective, the Legislature must "demonstrate its intention with sufficient clarity that a reviewing court can discern and effectuate it." ( Pedro T. , at p. 1049, 36 Cal.Rptr.2d 74 , 884 P.2d 1022 .) Here, the family court suggested that, when enacting current section 4007.5, the Legislature intended to save former section 4007.5 ; however, such a possibility is not supported by the legislation containing current section 4007.5 or by the history surrounding its enactment.^[10]

Initially, there is no express or implied clause saving former section 4007.5 in the legislation enacting current section 4007.5. (Stats. 2015, ch. 629.) Moreover, on at least three bases, the Legislature communicated an intent not to save the statutory protections previously provided by former section 4007.5.

First, in the legislation enacting current section 4007.5, the Legislature expressly included the repeal of former section 4007.5 (Stats. 2015, ch. 629,

Third, consistent with former section 4007.5, subdivision (g), early versions of the bill that became current section 4007.5 expressly applied to "child support orders and modifications issued on or after July 1, 2011 ." (Assem. Bill No. 610 (2015-2016 Reg. Sess.) Feb. 24, 2015, § 2, italics added; Assem. Amend. to Assem. Bill No. 610 (2015-2016 Reg. Sess.) Apr. 8, 2015, § 2, italics added.^[13] ) However, the Legislature ultimately amended those versions of the bill to apply only to child support orders "issued or modified on or after" October 8, 2015. ( § 4007.5, subd. (f) ; see fn. 8, ante .)

In summary, since the Legislature could have included a saving clause in current section 4007.5 but did not, and instead expressly repealed former section 4007.5 while recognizing an interruption in the statutory protections previously afforded by former section 4007.5, the only intent we, as a reviewing court, can discern is that, in enacting current section 4007.5, the Legislature intended to discontinue , not to save , rights under former section 4007.5.

C. Conclusion

While the family court's ruling, including the stated reasons, was compassionate, it was nonetheless erroneous on the record before the court. At the