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Keep your support payment receipts

It’s the Law

Posted: August 21, 2008 9:24 p.m.
Updated: October 23, 2008 5:01 a.m.
What happens if you have faithfully paid all of your court-ordered child or spousal support but many years after the fact, your ex brings you back to court claiming you paid nothing at all?

The answer, according to the recent California Supreme Court case of Marriage of Fellows, is that you get to pay it all again unless you can prove you paid the support the first time around.

As to the type of proof you need, cancelled checks or signed receipts are the best evidence that you paid. However, if it is many years later and those records are no longer available, your word against your former spouse's word will probably not be enough.

In the Fellows case, the parties were divorced in New York in 1985, with the court ordering the husband to pay child support of $50 a week to his wife. Over 17 years later, the wife registered the child support order in the state of California alleging that husband had never made the support payments and that he owed her $26,000 plus interest. The husband sought to vacate the registration claiming that he had paid in full and asserting, among other things, the defense of Laches.

Simply put, Laches is an equitable defense that stands for the position that if you wait too long to bring your claim, then equity dictates that the claim should be denied.

California has a long history of allowing the defense of Laches, including in cases of past due support. However, in 2002 the Legislature amended Family Code section 4502(c), removing the defense of Laches with respect to any support owed to a party.

The defense of Laches remains with respect to support owed to the State (i.e. in a welfare reimbursement case).

In the Fellows case, the trial court held that although the husband had met his burden of proof as to the defense of Laches, it concluded that the defense of Laches was no longer available. In affirming the trial court's decision, the California Supreme Court noted that over two million children in California were owed over $19,000,000 in unpaid support and that many of these children fail to thrive because there are insufficient funds to meet their basic needs.

While the husband conceded the state's interest in protecting California's children and enforcing support obligations, he contended he had reasonably relied on the availability of the defense of Laches in his failing to preserve written proof of his child support payments. This argument proved unsuccessful.

The California Supreme Court held that the husband could attempt to show proof of payment through testimony alone. Of course, that is exactly what he tried to do, but his testimony alone did not convince the trial court and he lost.

In a case I recently handled, I sought child support for a wife on an order that was 28 years old. In this case, as in the Fellows case, the husband testified he paid all of his ordered support and the wife testified he paid very little.

The court held that since the husband had the obligation to pay, he also had the burden to produce evidence that he had done so.

The court found his testimony alone to be unconvincing and held that the defense of Laches no longer applied. The result? He paid in full (again?) with interest and he paid a large portion of his ex-wife's attorney's fees.

The lesson to be learned from all of this is that if you pay child support, spousal support or family support, keep your cancelled checks, receipts or other written proof that you have made these payments, literally until the day you die.

Otherwise, you may well have to pay twice.

Donald R. Klahs is a partner with the law firm Klahs & Hedman in Santa Clarita, which handles family law matters. His column represents his own views, and not necessarily those of The Signal. "It's the Law" appears Fridays and rotates between members of the Santa Clarita Valley Bar Association.


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