In re Marriage of Popenhager

In In re Marriage of Popenhager (1979) 99 Cal. App. 3d 514, an action to dissolve a marriage was commenced in the Santa Clara County Superior Court. The judgment of dissolution ordered the father to pay $ 200 per month for child support. (Ibid.) In the meantime, the mother had moved to Washington State, where she filed an action for reciprocal support under Revised Uniform Reciprocal Enforcement of Support Act (RURESA), seeking $ 200 per month in support payments, plus $ 1,200 in arrearages and costs. (Id. at pp. 518-519.) The Washington court authorized the mother to obtain enforcement of the support order against the father through a second, independent reciprocal action in Santa Clara County Superior Court (the reciprocal action). (Id. at p. 519.) At a hearing in the reciprocal action, the court concluded the father was able to pay $ 30 per month in child support, and ordered him to do so immediately. (Ibid.) Over the course of the next eight years, the father paid $ 30 per month for a total of 39 months. (In re Marriage of Popenhager, supra, 99 Cal. App. 3d at p. 519.) The father never paid $ 200 per month in child support, and paid nothing at all most of the time. (Ibid.) The mother eventually obtained a writ of execution against the father based on the child support order in the original dissolution judgment. (Ibid.) The father moved to quash the writ, consolidate the dissolution action and the reciprocal action, and modify the support provision in the dissolution judgment to conform to the later $ 30 per month support order in the reciprocal action. (Ibid.) After consolidating the actions, the trial court concluded the reciprocal action support order superseded the support provisions in the dissolution judgment, and computed arrearages based on the reciprocal action support order amount of $ 30 per month. (Id. at pp. 519-520.) The appellate court concluded the trial court had erred, because the reciprocal action support order could not supersede the support order in the dissolution judgment, meaning the father's support obligation had continued to accrue at the rate of $ 200 per month, offset by the amounts he had paid. "A reciprocal support order, in and of itself, will not act to supersede a prior support order arising from a dissolution action. Supersession occurs only where the issue of modification has been raised and litigated by the parties. Likewise, a reciprocal support order, like the instant one, which differs in face amount from a prior dissolution action support order but does not expressly mention modification, cannot automatically and after-the-fact, modify the dissolution order; the amount on the face of the reciprocal order merely represents the sum currently enforceable." (In re Marriage of Popenhager, supra, 99 Cal. App. 3d at p. 521.) In sum, in In re Marriage of Popenhager (1979) the Santa Clara Superior Court entered a judgment dissolving the parties' marriage in 1968, awarding custody of the minor child to the wife and ordering the husband to pay monthly child support in the amount of $ 200. The wife moved to Washington and filed an action for reciprocal support there, seeking $ 200 per month and $ 1,200 in arrearages and costs. The matter was referred back to the Santa Clara court for enforcement. In July 1969, the Santa Clara court issued an order in those proceedings, requiring the husband to pay $ 30 per month. It did not refer to the dissolution action or to the earlier order awarding support. Eight years later, the wife attempted to enforce the $ 200 per month support provision of the dissolution decree. Division Two of this court found that the wife's claim had validity, rejecting the contention that the reciprocal support order superseded the support provisions of the interlocutory judgment in the dissolution action: "Clearly, under Code of Civil Procedure section 1689, the reciprocal order by itself could not act to supersede the prior dissolution support order. As no plea for modification of support payments was then made, the dissolution decree support order was controlling. Accordingly, the husband was continuously obligated to pay child support obligations at the rate of $ 200 per month pursuant to the divorce decree up until the prospective modification of the obligation by the instant order effective November 1, 1977. The effect of the July 2, 1969, order requiring the husband to pay $ 30 per month commencing July 1, 1969, was to stay immediate enforcement of the full $ 200 obligation, except to the extent of the $ 30 per month which he then could afford. Compliance with the reciprocal support order entitles the husband to a $ 30 credit against his $ 200 monthly obligation under the dissolution support order." (In re Marriage of Popenhager, supra, 99 Cal. App. 3d at pp. 521-522.)