Once a support order has been issued, it may be modified “as the court determines necessary,” (Family Code Section 3651(a)), and the modification order may be made retroactive to the date of filing of the request, or to any subsequent date.  Family Code Section 3653.  So far so good, but what happens if the order you seek to modify authorizes a retroactive modification?

In Marriage of Gruen (2011), the Trial Court ruled that it was issuing a support order pending receipt of a report on the husband’s income.  This was done to address the wife’s need for immediate support while reserving the ability to correct the order once it had more accurate information. The Gruen wife later objected to a retroactive modification without her husband first filing a new request and then only to the date the request was filed.  The Trial Court rejected the wife’s position on the grounds that it had never lost jurisdiction to modify the original order.  However, the Court of Appeal agreed with the wife and reversed the Trial Court’s retroactive modification because the husband did not file a new request with the Court.

To complicate this issue, one year after Gruen, the Court of Appeal decided Marriage of Freitas (2012) and arrived at a different result on the same issue.  In Freitas, the Court ordered the husband to pay temporary spousal support to his wife and for the wife to pay child support to the husband.  However, due to questions about the wife’s income, the court reserved jurisdiction to retroactively modify it’s orders until after the husband had time to conduct discovery on his wife’s income.  However, before the Freitas husband could submit his new evidence, the Gruen decision was published and the Trial Court in Freitas decided it lacked jurisdiction.  In reversing the Trial Court, the appellate decision in Freitas distinguished Gruen.  Namely, it interpreted Gruen to be a final Order with no pending request for modification, whereas Freitas expressly reserved jurisdiction to modify its original awards and scheduled a further hearing.

Despite the difficulty in reconciling Gruen and Freitas, if we want to be able to retroactively modify a support order, then we may be able to do so if the Order says that it is not final and that the issue is to remain on calendar for a further hearing in the future.  While certainly no guarantee of retroactive modification, calling the order temporary, subject to retroactive modification, and continuing it for a further hearing certainly increases the chance of a future modification.

After Gruen and Freitas, the parties in Stover vs. Bruntz (2017) entered into a Stipulated (agreed) Order that allowed for a credit to the father in his child support obligation if the wife could not prove her childcare expense.  However, despite the agreement of the parties, the Court of Appeals said the Stipulation exceeded the Trial Court’s jurisdiction to make a retroactive order. In reaching its decision, the Stover court held that the agreement of the mother and father violated the statutory scheme and public policy.  The facts in Stover are somewhat unique but nonetheless give a warning to parties who seek future retroactive modification of child support orders. As evidenced by reading the Gruen, Freitas and Stover decisions, the retroactive modification of child and spousal support orders can be challenging and uncertain.  If your case presents a retroactive modification issue, you should consult with an experienced Family Law attorney.

Do you want to hear more about the latest information about the retroactive modification of support orders in divorce? If you have questions about divorce information, please contact our office to schedule a consultation. The Law Office of Bawden & Kochis also handle legal issues regarding adoption, annulment, mediation, child custody, child and spousal support, community property, visitation, separation, and domestic violence as well as pre-marital and post-marital agreements. Telephone (909)792-0222, or email us at [email protected]

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