Recovering Child Support Not Ordered in the Divorce Decree
If a divorce decree doesn’t award child support, the custodial parent must modify the order to get support. The custodial parent cannot collect past due support before amending the decree. When the county provides child support and seeks reimbursement, does it have more rights than the custodial parent? In County of San Diego v. Green, 810 P.2d 622 (1991) the Arizona Court of Appeals considered the issue.
Case Facts
Mr. Green and Mrs. Green divorced in 1988. They had two minor children at the time. Each was given custody of one of the children, and no child support was awarded to either of them. However, Mrs. Green was not able to support herself and the child.
She applied for Aid to Families with Dependent Children benefits from San Diego County. The County brought this action to recover support payment from Mr. Green. It also wanted the court to order him to pay future support under the Uniform Reciprocal Enforcement of Support Act (URESA). The court rejected the County’s argument and ruled for Mr. Green because the decree did not order child support. The County appealed.
Recovering Child Support Not Listed in the Divorce Decree.
County Has More Rights than Mrs. Green
The Court ruled that the fact that a mother cannot sue for back child support does not prevent a public agency from collecting back child support. A public entity can recover public support furnished for a child under the provisions of URESA.
The URESA provisions explicitly permit a state or county the right to seek reimbursement of support provided to a child. The term “duty of support” is defined as “a duty of support whether imposed or imposable by law….” These sections allow the County to recover past support from Mr. Green. They also allow the County to impose a duty to furnish future support upon Mr. Green.
Mrs. Green could not recover past support nor could she seek future support without modifying the dissolution decree. However, these circumstances are not relevant to the County’s rights. A public agency that pays support for a child can obtain reimbursement from a noncustodial parent regardless of the other parent’s rights.
Obtaining Child Support Previously Unknown in the Divorce Decree.
The family law statutes regulate support duties between spouses. One parent may lose out on rights if he or she does not act. But ultimately, both parents owe a duty to support their children. A parent’s failure to modify support is not the same as the termination of the parental duty of support.
Here, a public agency provided the support needed for the parties’ child. The Court noted that Mrs. Green could have asked the court to order support, but may not have known her rights. Her failure to act, however, does not reduce the public agency’s claims to reimbursement from Mr. Green.
Disposition
The Court of Appeals reversed the judgment denying the County of San Diego reimbursement for funds it expended for Mr. Green’s and Mrs. Green’s child. It remanded the case to the lower court for further hearings.
If you have a question about child support and divorce in Arizona, please call to speak to one of our experienced Scottsdale and Phoenix Arizona family law attorneys at (480)305-8300.
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