Tuesday, October 23, 2012
C.A. Affirms Support Increase After Jurisdictional Challenge
‘Be Careful What You Wish for,’ Justice Admonishes, After Father’s Success in Ohio Court Costs Him in California
By KENNETH OFGANG, Staff Writer
An Orange Superior Court judge did not abuse his discretion by ordering a father who divides time between two states to pay more in child support than was required by an Ohio order that he successfully challenged, the Fourth District Court of Appeal ruled.
Nor did the court violate Jeffrey Barth’s equal protection rights by making the new order retroactive, the Div. Three panel said.
“If ever there was a case where the adage ‘be careful what you wish for’ applied, this is surely it,” Justice Eileen Moore wrote for the court.
Barth, a certified public accountant with business interests in both states, married in 1989 and has two children, now ages 18 and 16. In February 2004, he moved from Westlake, Ohio to Orange County to become an internal auditor for a manufacturing company.
Andrea Barth and the children stayed in Ohio for another five months. In August 2004, six weeks after their arrival, Andrea Barth—having learned of her husband’s infidelity—took the children back to Ohio and filed for divorce.
Jeffrey Barth countered by filing in Orange Superior Court and seeking the return of the children. After consultation between judicial officers in both states, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, the California proceedings were stayed.
The litigation in Ohio took up the next 31 months, during which time Jeffrey Barth secured a more lucrative position in Orange County, from which he was subsequently terminated with severance, a previously earned bonus, and a partial settlement from a stock option program.
He then started up businesses in both states, specializing in auditing and tax relief. He traveled back and forth, maintaining two residences, and visiting with the children in Ohio.
The Ohio trial court, after rejecting his challenge to its jurisdiction, set child support at $1295 monthly, later increased to $1,600. But in March 2007, the Ohio Supreme Court ruled that the state’s courts had no jurisdiction in the case because Andrea Barth, the petitioner, had lived in California for 40 days and didn’t wait the required six months after returning to the state before filing.
After all orders of the Ohio court were vacated, Jeffrey Barth moved to lift the stay in Orange Superior Court. After the stay was lifted, Andrea Barth sought child support.
Following a referee’s hearing, Judge James Waltz ordered the father to pay support in amounts varying between $1,000 and $3,125 per month, retroactive to September 2004, which—with credit for nearly $60,000 actually paid during that time—left him more than $170,000 in arrears. He was ordered to pay off the arrears at $1,000 per month.
Waltz concluded that the Ohio award had been “modest” and that Barth had been less than candid in his filings in both states and had presented “multiple instances of....false or misleading sworn testimony” and “purposefully understated his living expenses to match his professed de minimis self-employment income.”
Waltz’s claimed income, the judge added, was “woefully” inconsistent with “his age, education, work experience, and earning history and a lifestyle that includes homes and businesses in Ohio and California.”
Justice Eileen Moore, writing for the Court of Appeal, said there was no error.
She cited Family Code Sec. 4009, which allows a trial court to order child support, retroactive to the date of the initial pleading, except that if the pleading was not served within 90 days of filing and the opposing party was not evading service.
Jeffrey Barth argued that Sec. 4009 should not apply given that Andrea Barth “never submitted to the jurisdiction of the California Court” until after the Ohio Supreme Court ruling, took the children to Ohio and sought relief in that state’s courts, “actively avoided” California jurisdiction. He also said the Legislature could not have intended to apply “California Guidelines” retroactively to a period during which Andrea Barth obtained “an Ohio child support order based on Ohio law and Ohio standards of living.”
That argument was factually questionable and unsupported by legal argument, Moore said. “While Jeffrey is entitled to his own opinion about what the statute intended, we need not ponder the Legislature’s intent when its language is clear,” the justice wrote.
“Perhaps more importantly, he 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),” Moore added.
The jurist also rejected Barth’s claim that of an equal protection violation. Barth was not, she said, similarly situated to someone who was subject to a temporary support order in California and would not have been subject to a subsequent order retroactively increasing the temporary amount.
A permanent order from another state is very different from a temporary California order, Moore said, besides which the Ohio orders were held void by that state’s highest court and thus “never existed” as a matter of law.
The case is In re Marriage of Barth, G045142.
Copyright 2012, Metropolitan News Company