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Court of Appeal:
Judge Improperly Conditioned Seeking of Modification
Man Who Had Skirted Child Supportm Spousal Support Obligations Properly Denied Hearing On Current Request for Changes in Order but Could Not Be Barred From Making Future Requests Unless Payments Were Current
By a MetNews Staff Writer
A judge abused his discretion in barring a man who had a history of falling behind on his support obligations from seeking any future order modifying the obligations if he were currently in arrears, Div. Three of the Fourth District Court of Appeal has held.
The opinion, by Justice Thomas A. Delaney, was filed Feb. 16 and certified for publication yesterday. It partially affirms and partially reverses a July 3, 2021 order by Orange Superior Court Judge Donald F. Gaffney.
It affirms to the extent that Gaffney declined to entertain a present request for an order (“RFO”) sought by Richard Cohen to end spousal support and reduce the amount of child support because, in light of his delinquency in paying. While Cohen’s ex-wife, Lauralin Anderson Cohen, had sought a dismissal of the RFO based on the disentitlement doctrine, Gaffney instead founded his decision to dismiss the present application based on unclean hands.
Portion Reversed
The opinion reverses Gaffney’s order that any future RFO for a modification be entertained only if “at the time of such future filing,” Richard Cohen “is current in the payment of his child and spousal support obligations.”
Delaney wrote:
“We are unable to locate—and Lauralin does not cite—any case supporting conditioning future RFO’s on payments of support obligations…. “The disentitlement doctrine does not support the trial court’s order….[T]he disentitlement doctrine should not be applied lightly, but must be based on the equities of the individual case….A blanket dismissal of an RFO before considering any changes in circumstances, such as substantial compliance with support obligations, would be inequitable, even with the record showing a history of Richard being in arrears.”
Individual Basis
He continued: “Stated differently, a court may, after considering the equities, dismiss future RFO’s on the basis that Richard is not current with his obligations. But such dismissal must be on an individual motion-by-motion basis. Accordingly, the court erred in conditioning the filing of future RFO’s on Richard being current with his support obligations.”
The case is In re Marriage of Cohen, 2023 S.O.S. 1017.
The request for publication was made by San Diego law firm of Antonyan Miranda, LLP.
Copyright 2023, Metropolitan News Company